nasibu mayoka vs ismail omari ngalawa 2018 tzhclandd 507 10 august 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 130 of 2017 (From the decision o f the District Land and Housing Tribunal of Kilombero in Land Appeal No. 259 o f 2016 and original Ward Tribunal o f Mwaya in Complaint No. 25 o f 2016] NASIBU MAYOKA......................................... APPELLANT VERSUS ISMAIL OMARI NGALAWA.......................... RESPONDENT Date o f Last Order: 13/7/2018 Date o f Judgment: 10/08/2018 JUDGMENT MGONYA, 3: This Appeal is originating from Land Case No. 25 of 2016 filed by the Appellant on 22/09/2016 before Mwaya Ward Tribunal in which the Appellant was claiming against the Respondent on trespass. On 03/11/2016 the Ward Tribunal delivered its judgment on favour of the Respondent. Aggrieved by the decision the Appellant appealed to Kilombero District Land and Housing Tribunal of Ulanga in Land Appeal No. 259 of 2016 which upheld the decision of Mwaya Ward Tribunal. In this Court Appellant NASIBU MAYOKA has filed three grounds of Appeal being;- 1. That the Hon. District Land and Housing Tribunal erred in law and in fact by upholding the decision of the Ward Tribunal which entered its judgment in favour of the Respondent by considering the document tendered by the Respondent During the trail without considering that the said document did not comply with requirement of law which governs Customary right of Occupancy. 2. That the Hon. District Land and Housing Tribunal erred in law and in fact by upholding the decision of the Ward Tribunal without considering the contradicting evidence testified by the Respondent's witness during the trial that he never saw the Respondent cultivating the disputed land while the Respondent was claiming to have cultivated it. 3. That the Hon. District Land and Housing Tribunal erred in law and in fact by upholding the decision of the Ward Tribunal without considering the evidence adduced by the Respondents witness during the trial, who proved to know nothing about the disputed land and its sizes. Thus the Appellant prayed that the Appeal be allowed and the decision of the Ward Tribunal be reversed and order the case to start afresh. Replying to the Petition of Appeal, the Respondent ISMAIL OMARI NGALAWA challenged the Appeal praying for its dismissal with costs. It is on record that having heard both parties and their witnesses, the Ward Tribunal also visited the disputed land. The trial Ward Tribunal found in favour of the Respondent and declared him as the lawful owner of the suit land. Aggrieved by the said decision, the Appellant therein appealed to the District Land and Housing Tribunal in which it upheld the decision of the trial Ward Tribunal and found in favour of the Respondent on the ground that the suit land belonged to the Respondent's late father. At the hearing of this Appeal, Appellant and Respondent appeared in person. The Parties prayed to dispose the Appeal by way of written submissions; the prayer that was granted. In support of the grounds of Appeal, on the first ground of Appeal; Appellant submitted that, according to Section 25 (2) of the Village Land Act, Cap. 114, the document tendered by the Respondent claiming to be the Certificate of the Customary right of Occupancy issued by the Village Council of Mwaya Village was not genuine because it does not comply with the above provision. He averred that, it is the law that the said certificate was not written in the prescribed form and was signed by the Chairman and Village Executive Officer not by the Secretary of the Village Council. The Appellant further submitted that there was a difference in the condition set out in the said certificate and that provided under Section 29 (2) of the Village Land Act, Cap 114 hence the document was forged and not genuine in law. To cement his argument, the Appellant referred the Court to the provision of Section 34 (1) (c) of the Land Disputes Courts Act, Cap. 216 in which it was the duty of the Appellate Tribunal to make further enquiry in determining whether the document tendered before the trial Tribunal was genuine or forged before upholding the decision. On the 2nd ground of Appeal, Appellant averred that the Respondent's witness denied to have seen the Respondent cultivating the suit land and further she was told that the Respondent was the one who owns the disputed piece of land but to the surprise this witness was not among the neighbours. It is the Appellant's view that the Respondent couched this witness who was not among his neighbours. Further to that the Appellant cited Section 62 (1) of Evidence Act, Cap. 6 [R. E. 2002] which prohibits hearsay evidence and such evidence could not be admissible before the Court; and that the Respondent's witness was not direct during trial as required by the Law. On the last ground of Appeal, the Appellant submitted that the Respondent's witness was summoned before the Tribunal for the purpose of evidencing that the person called was the lawful owner of the disputed piece of land but surprisingly this witness knew nothing about the disputed land something which was difficult for her to demonstrate anything related to the said piece of land. From the above grounds of Appeal, the Appellant prayed the Appeal be allowed with costs and the decision of the Mwaya Ward Tribunal be reversed and order the case to start afresh. In reply, ISMAIL OMARI NGALAWA, the Respondent herein submitted that the evidence adduced by witnesses of the respondent in the trail Tribunal clearly shows that the Respondent was given land by his father since 2009. Further, the evidence of the Certificate of the Right of Occupancy based under Section 18 of the Village Land Act, Cap.114 [R. E. 2002] which vested powers to Village Council Authority to allocate Village land to different categories as provided under Sub (a) (Supra). The Respondent averred that, whether the Village Council allocate the said land contrary to Section 25 (2) Supra, it was own fault and cannot affect the Respondent's father title. And the fault if any the remedy was to amend the said Certificate to comply with conditions provided above. Further, the Respondent submitted that, the trial Tribunal in making decision also considered the contradiction between the Appellant and his witness during giving their testimony on size of the suit in dispute. On the 2nd ground of Appeal, the Respondent submitted that on the issue of one who cultivated the suit land was not an issue as the facts was that the suit land belong to the Respondent's father. Further, Respondent submitted that, the issue before the Ward Tribunal was ownership as the witness said she was told that the said land belongs to the Respondent. This facts was relevance to the issue before the Tribunal. Respondent cited the Provision Section 62 (1) of Cap 6 hence the testimonies was not hearsay evidence but direct evidence and admissible under Sub Section (b) of Cap. 6. On the last ground of Appeal, the Respondent contended that his witness could not know the size of the land in dispute because the same does not belong to her. Further to that, the Respondent submitted that the exactly size could be proved by the document provided by the relevant Authority. From above submission, the Respondent prayed to this court to dismiss the Appeal for want of merits. Having considered the rival submissions of both parties, I will now determine the grounds of Appeal as follows:- It is in court's record that the Respondent was given the land in question by his father since on 2009. Upon considering the evidence of both parties, I find that the Respondent's evidence against the Appellant hold water tight to the effect that the disputed land of two acres is within the Respondent's area and was located in the center of 10 acres. Appellant failed to deliver good and convincing evidence that the said land belong to his father as he alleged. According to the evidence on record, on 24/10/2016 the trial Ward Tribunal visited the locus in quo so as to get a clear picture on what was in dispute. At the locus in quo the trial Ward Tribunal found that the Respondent was very certain with land in dispute than the Appellant. The trial Tribunal further asked the neighbours on the boundaries of the disputed land. On the other hand, the Appellant contradicted with his witness one AWAMI MAYOKA on the numbers and the names of their neighbours to the effect that the Appellant mentioned four people while his witness mentioned three people, (MALOTA, MAKENYANGENYA, MAPUNDA, and KUYEYA while, KIBITI, MAHAPULA and MAKWEA) respectively. The record revealed that the evidence adduced by the Respondent confirmed that the Respondent's father was living in the disputed land since 1999 and after clearing the land and cultivating the same, in 2003 the Respondent's father registered the land to the MHELULE VILLAGE COUNCIL and the same issued the Certificate of Customary Right of Occupancy. Later, in 2009 the Respondent's father handed over the sad land to his children; Respondent inclusive. With regard to the grounds of Appeal, having carefully gone through the evidence on record, I believe the first Appellate Court properly considered the evidence adduced (testimonies of the neighbours as well as the document tendered), by regarding the credibility of evidence of the Respondent in contradiction of Appellant and of his witnesses which were adduced at the trial Tribunal. On this, I can't hesitate to state that it is the trial Court which is better placed to assess the credibility of witnesses and evaluation of the evidence adduced. In this case, the Ward Tribunal is in the better place to assess the credibility of the witnesses and to evaluate the evidence adduced. This position of the law was also reiterated in the several cases. In the cases of ALI ABDALLAH RAJAB V\ SAADA ABDALLAH RAJABU AND OTHERS [1994] TLR 132 it was held that:- "Where the decision o f a courtis wholly based on the credibility o f the witnesses, then it is the trial court which is better placed to assess, their 8 credibility than an appellate court which merely reads the transcripts of the record Again, in the case of Omar Ahmed V. R. [1983] TLR 52 in which it was held: "The trial court's finding as to credibility o f witnesses is usually binding on an appeal court unless there are circumstances on the record which call for a reassessment of their credibility Further to that, the trial Ward tribunal had the opportunity to visit the locus in quo. It goes without say that the Tribunal rightly held as it did. Thus it was correct for the first Appellate Court to have only read the transcripts of the record to access the credibility of the both party's witnesses. Therefore, it is goes without say that a person or a party whose evidence is heavier than that of the other is the one who must win. In the circumstances, I find no justifiable reasons to disturb the findings of the first Appellate Court. I thus uphold the decision of the Kilombero District Land and Housing Tribunal in Land Appeal No. 259 of 2016, as I find no merit in this appeal. In the upshot, I hereby dismiss the Appeal in its entirety with costs. It is so ordered. Right of Appeal Explained. L. E. MGONYA JUDGE 10/ 08/2018 COURT: Judgment delivered before Hon. A. Teye, Deputy Registrar in the presence of Respondent in person and Ms. Kitowo RMA on 10th August, 2018 in chamber No. 17. L. E. MGONYA JUDGE 10/ 08/2018 10