Mlewa

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA MISC. LAND APPEAL NO. 6 OF 2023 (Arising from the Decision of District Land and Housing Tribunal of Tabora in Land Case Appeal No. 82 of2021 and Original Ward in Application No. 7 of2021 before Kamsekwa Ward Tribunal) NASSORO SHABANI MLEWA........................................ APPEALLANT VERSUS JUMANNE SAID LUSABHA..................... RESPONDENT JUDGEMENT Last order: 12/03/2024 Judgement date: 17/06/2024 MANGO, J The Appellant, Nassoro Shabani Mlewa was the Respondent in Civil Case 7 of 2021 instituted by the Appellant Jummanne Said Lusabha before Kamsekwa Ward Tribunal alleging trespass to his land. The Trial Tribunal ruled in favour of Nassoro Shabani. Aggrieved by the decision of the Trial Tribunal, the Respondent successfully appealed before the District Land and Housing Tribunal for Tabora via Land Appeal No. 82 of 2021. The Appellant was not satisfied with the decision of the District Land and Housing Tribunal, he lodged the appeal at had on five grounds of appeal which reads; 1. THAT, the appellate Tribunal grossly erred in law and fact (s) to hold in favor of the Respondent while the weight of evidence of the i Appellant during the Trial Tribunal was heavier and water tight compared to that of the Respondent hence arrived at wrong findings. 2. THAT, the appellate Tribunal grossly erred in law and fact (s) to revise the decision of the Trial Tribunal favor of the Respondent while he has failed to prove his case on the balance of probabilities during trial. 3. THAT, the appellate Tribunal grossly erred in law and fact (s) to hold in favor of Respondent without giving due regard to the evidence that was adduced before the Trial Tribunal when they pay visit to locus quo and the Trial Tribunal was in better position to assess the demeanors of disputants along with their preferred witness, hence arrived at the wrong findings. 4. THAT, the appellate Tribunal grossly erred in law and fact (s) to decide in favor of the Respondent by relying on extraneous matter of the sketch map which was neither tendered nor admitted in the Trial Tribunal records during the trial Court proceedings hence arrived into the wrong decision. 5. THAT, the appellate Tribunal grossly erred in law and fact (s) to declare the Respondent as the lawfully owner of the disputed land while there is neither an iota of proof nor evidence of ownership adduced by the Respondent at the Trial Tribunal compared to the evidence adduced by the appellant following the long occupation/ usage of the disputed land since 1988's peacefully without being disturbed from anybody including but not limited to Respondent up until 1996. 2 During hearing the Appellant was represented by Appellant Hassan Kilingo and Agnes Simba learned advocates while the Respondent was represented by Stella Nyaki and Salehe Makunga learned advocates Advocate Simba submitted on the first and second grounds of appeal collectively. She highlighted that, the first ground concerns failure to consider the weight of Appellant's evidence and the second ground concerns failure to consider the decision of the Trial Tribunal. She argued that, the matter was originally instituted by the Respondent contesting ownership of the disputed land. According to her the Respondent failed to prove his claims. The learned counsel mentioned what caused the Respondent's failure to prove his ownership over the land in dispute. In this, she submitted that, the Respondent did not produce any documentary evidence proving his purchase of the suit land from Maiko Paulo Bilahaluka . He merely produced oral evidence that he purchased the suit land. He never summoned the alleged vendor of the disputed land. He merely mentioned the name of his alleged vendor to be Maiko Paulo Bilahaluka as evident from the contents of proceedings of District Land and Housing Tribunal at page 7 and Trial Tribunal at page 1. The learned counsel compared the Respondent's evidence with Appellant's testimony who testified to the effect that he acquired the land by clearing the bush in the year 1988. She concluded that, the Appellant's evidence weighs more that the Respondent's evidence, because the Respondent has not summoned any witness who witnessed the alleged purchase of the land while the Appellant 3 managed to prove his ownership over the disputed land by identifying boundaries of the land and mentioning neighbors to the disputed land. She acknowledged that, there is no concrete evidence of ownership was adduced in this matter thus, the decision of the Trial Tribunal depended mostly on credibility of witnesses who testified before it. The learned counsel reminded this Court that it is the trial Court which is in a better position to assess and determine credibility of witness rather than the Appellate Court. Thus, the decision of the Trial Tribunal is correct than that of the Appellate Tribunal. Advocate Kilingo submitted on the remaining grounds of appeal. On the third ground of appeal in which the Appellant alleged that the appellate tribunal failed to consider evidence before the Trial Tribunal, he argued that in its decision, the Trial Tribunal considered evidence obtained at locus in quo and testimony of the witnesses. He faulted the District Land and Housing Tribunal for its failure to consider evidence collected by the Trial Tribunal during its visit to the land in dispute. He is of the view that, had the District Land and Housing Tribunal evaluated the evidence as the Trial Tribunal did, it wouldn't have reversed the Trial Tribunal's decision. On the fourth ground of appeal he stated that, the District Land and Housing Tribunal considered extraneous matters. He mentioned matters he considers to be extraneous to include a sketch map of the land in dispute alleged to have drawn on 2nd June 2022. He argued that neither party tendered a sketch map of the land in dispute during trial, it is only the Trial Tribunal which drew the sketch map when it visited the land in dispute on 4 23rd October 2021 and not the 2nd June 2022. He is surprised that the District Land and Housing Tribunal in determining the appeal, it considered a sketch map which was allegedly drawn on 2nd June, 2022. On the fifth ground of appeal, he challenged the District Land and Housing Tribunal for failure to consider the Appellant's long usage of the land compared to the Respondent. He argued that, the Respondent purchased the land in 1996 while the Appellant entered the land in 1988 by clearing a bush. The dispute arose in 2021, the Respondent instituted an application claiming ownership over the land which has been occupied by the Appellant from 1988. The learned advocate submitted that, there is clear reasons as to why the Respondent emerged after a number of years. He argued further that, since the Appellant cleared the land, developed it and resided on the land for so many years, he acquired customary right of occupancy which is protected by our law. He referred this Court to the decision of the Court the Court of Appeal in the case of Lohay Akonaay and Another vs The Hon. Attorney General (Civil Application 43 of 1994) [1994] TZCA 47 (10 July 1994) regarding the status and protection accorded to customary land tenure. He concluded that, the land belongs to the Appellant, if the same need to be acquired, he deserves to be paid fair and prompt compensation. He prayed for the appeal to be allowed with costs. In her reply submission, advocate Nyaki for the Respondent submitted that, the Respondent managed to prove his ownership over the land in dispute through testimonies of his three witnesses. She argued that, all the 5 witnesses testified that the land belongs to the Respondent. Aside from Respondent's evidence, there is testimony of Mashaka Mohamed who confirmed that they once rectified boundaries of the land in dispute but to his surprise, the Appellant raised the claims again. She is of the view that, the Appellant did not respect the boundaries set by the committee as he extended boundaries of his land to the extent of trespassing the Respondent's land. The learned advocate rebutted the allegations that the Respondent's vendor did not testify before the Trial Tribunal. She submitted that, the Appellant's vender, Maiko Paulo Bilahaluka testified as PW3 and confirmed that he sold the land to the Respondent at Tshs. 40,000/=. He also stated that, the Appellant has trespassed into the suit land. He even mentioned the existence of the committee which rectified boundaries of the disputed. She concluded that, the Respondent managed to prove his ownership over the suit land on the required standard. The learned advocate mentioned also existence of the testimony of Matheo Edward @Dubwi who also testified to the affect that, the Appellant trespassed into the Respondent's land. She argued that, all three witnesses are neighbors to the disputed land and took part in rectification of boundaries that was done by the special committee formed by the village land tribunal. She acknowledged that, the Appellant holds land in the area and stated that, disputed land is not the entire land since both the Appellant and the Respondent hold pieces of land in the area. She pointed out that, the piece 6 of land in dispute is merely part of the Respondent's land into which the Appellant has trespassed. The learned advocate pointed out weaknesses of Appellant's evidence. In this, she mentioned the testimony of Yasin Shaban, one of the Appellant's witness before the Trial Tribunal. She argued that, this witness does not know the disputed land. He even averred clearly that, he was merely requested by the Appellant to testify in his favour. She argued that, although the Trial Tribunal is better positioned to determine the demeanor of witnesses in a matter which depends solely on testimonies of witnesses as this case, the Trial Tribunal can also err in its decision that's why there is the right to appeal. She stated that, she does not blame the Trial Tribunal but, in her view, had the Trial Tribunal been kin enough, it would have ruled in favour of the Respondent as he had stronger evidence than that of the Respondent. She concluded that, the first and second grounds of appeal are meritless. On the third ground of appeal, the learned counsel conceded that both the Trial and Appellate Tribunal visited the land in dispute. However, proceedings do not indicate names and or testimonies of neighbours of the land that was collected during the two visits. She argued that, there is no any piece of evidence that was extracted from neighbors to the disputed land as alleged by the Appellant's counsel. In such circumstances, she is of the view that, the only evidence that remains, is that of witnesses who testified before the Trial Tribunal. 7 On the fourth ground of appeal she argued that, the map was drawn by the Ward Tribunal on 23rd October 2021 and was not drawn by the Respondent as it was alleged by the Appellant's counsel. She wonders why the Appellant's counsel finds the decision of the Trial Tribunal to be correct but challenges the genuineness of the map drawn by same tribunal. She added that, the two tribunals considered the sketch map which was drawn by Ward Tribunal in their decision. On the fifth ground of appeal, the Respondent's counsel did not dispute the Appellant's long stay in the land. She submitted that, the only dispute is that, the Appellant has trespassed into the Respondent's land. According to her, the trespass began in the year 2017. This means from 1996 when the Respondent purchased the land, there was no dispute over ownership of the land until 2017 when the Appellant trespassed into the Respondent's land. Thus, dispute arose in 2017 when the Appellant started to trespass into the Respondent's land. The learned counsel argued that, immediately after the trespass, the Respondent approached the village land tribunal which, through its committee, visited the disputed land and rectified the boundaries. However, the Appellant did not respect the efforts of the village land tribunal. That, compelled the Respondent to approach the ward land tribunal as it can be seen in the proceedings. She concluded that, the issue of adverse possession concerns the land that was cleaned by the Appellant and not the land that was purchased by the Respondent. She prayed that, the appeal be dismissed with costs. 8 In his brief rejoinder, advocate Kilingo reiterated their submission in chief. He conceded that Maiko, the Respondent's vender testified during trial as PW3. He however argued that, his testimony is not that much strong. He also rejoined on the highlighted weaknesses Yasin's testimony. He argued that, the testimony of Yasin was not hearsay as alleged by the Respondent's advocate. To him, Yasin's evidence is clear and he even mentioned the size of his land which was given to Maiko for temporary use. He is of the view that, the testimony of this witness is reliable. On the issue of sketch map, he submitted that, they do not dispute the map drawn by the Trial Tribunal but the map that appears in the proceedings of the Appellate Tribunal which is very different from the one drawn by the Trial Tribunal. On the alleged trespass, he rejoined that, it was the Respondent who trespassed into the Appellant's land and not otherwise. He prayed the appeal be allowed with costs In the course of composing judgment, the Court found that the District Land and Housing Tribunal visited the locus in quo while entertain Land Case Appeal No. 82 of 2021 and collected evidence regarding the size of the land in dispute. The court invited parties to submit on the following issues that resulted from the Appellate Tribunal's visit to the disputed land. i) Whether the Appellate Tribunal has the mandate to visit locus in quo during appeal ii) Whether parties advocates were involved during the visit to locus in quo 9 iii) Since the visit was done after the assessors have given their opinion, whether it was proper for the Appellate Tribunal to re - open proceedings and receive evidence after assessors have given their opinion. I will not reproduce submissions by the parties on the issues raised by the Court because, I noted that the visit did not affect the tribunal's decision. It should be understood that, the visit to locus in quo is intended to verify what has been brought before the Court as evidence. For such visit to be meaningful, witness who testified on the physical features, boundaries and appearance of the locus in quo should attend and show those features to the Court for verification and clarifications. In such circumstances, where the visit to locus in quo was conducted by lower Court, the Appellate Court cannot visit the locus in quo and make its own findings as it was held in the case of Bomu Mohamed vs Hamisi Amiri (Civil Appeal No. 99 of 2018) [2020] TZCA 29 (27 February 2020). In the matter at hand, the Trial Tribunal visited the locus in quo and made its findings. When the Appellate Tribunal visited the locus in quo it did not make any findings. It only collected evidence as to the size of the disputed land and drew a sketch map of the land in dispute which is very different from the sketch map drawn by the Trial Tribunal on 23rd October 2021. The map drawn by the Appellate Tribunal lacks necessary features that have been mentioned by the witnesses during trial. Almost all witnesses mentioned the road, owners of neighboring pieces of land and boundary of Kasungu village as features that can be used to demarcate the disputed land. The map drawn by the District Land and Housing Tribunal does not have any io of those features. It indicates the size of the disputed land and location of the Appellant's and Respondent's land from the disputed land. Despite such irregularities I noted that the District Land and Housing Tribunal merely used evidence regarding size of the disputed land to assist in description of the land. Fortunately, neither party has raised any issues regarding the size of the disputed land as indicated in the sketch map drawn by the Appellate Tribunal. In that regard, I find no injustice was occasioned to either party and I proceed to determine the appeal on merits. Since there is no concurrent findings on facts by the two tribunals which adjudicated this matter, I will evaluate evidence on record a bit. I will start with the first and second grounds of appeal which all concerns proof of the ownership over the disputed land by the Respondent. Court record indicates that, the matter was initiated by the Respondent who was the Applicant before the Trial Tribunal. It is an elementary principle of evidence that, whoever allege must prove. The principle is contained in section 110 of the Evidence Act, [Cap 6 R.E 2019]. Applying the principle in this matter, it was the Respondent who had the duty to prove his case on balance of probability. According to the Respondent, he purchased his land from Maiko Zilahulura Paulo. The Respondent managed to prove that, he purchased a piece of land from Maiko but he did not establish the size of the land he purchased. The said Maiko appeared as the Respondent's witness and did not dispute the fact that he sold land to the Respondent unfortunately he did not testify on the size of the land. The only evidence that would have been of assistance in determining this matter regards boundaries of the land li purchased by the Respondent. Testifying on the boundaries of the land, the Respondent, Maiko and Matheo Edward© Dubi, averred that, pieces of land in the disputed area are positioned in a manner that, they all start from the road to the border of Kasungu village. This piece of evidence was the basis of the Appellate Tribunal's decision and rectification of boundaries of the disputed land that was done by the committee formed by the village land tribunal. Aside from the manner the plots are positioned there is no evidence that was tendered establishing the size of the land of any of the parties in this appeal. My thorough consideration of evidence in record establishes that, if the testimony of the Respondent and his witnesses is correct, then the Appellant has no piece of land in the area. This is evident from the fact that, according to Maiko the land he purchased from the person he did not mention was bordered by Bwatu and her sister Tabu Shabani. The sketch map drawn by the Trial Tribunal indicates that the land belonging to Tabu Shabani borders the Appellant's land and it does not go further to the border to Kasungu village. The sketch map indicates that, the Appellant's land lays between Tabu Shabani's land and the border to Kasungu Village. This means if the Respondent's testimony is correct, the land that is indicated in the sketch map to be the Appellant's land should be Tabu Shabani's land. I hold so because the sketch map drawn by the Trial Tribunal indicates that, Tabu Shabani's land starts from the road side and ends in mid-way, it does not reach the border to Kasungu village. Fortunately Tabu Shabani was among the Appellant's witnesses before the tribunal. In her testimony, Tabu did not dispute existence of the 12 Appellant's land between her land and the border to Kasungu village. This piece of evidence negates the allegations that, all pieces of land in the said area run from the road to the border to Kasungu Village. In brief, the Respondent's testimony is not supported by physical layout of the land in dispute and he failed to adduce any evidence proving the size of the land he purchased from Maiko. Even Maiko did not give a detailed account as to how he acquired ownership over the land he sold to the Respondent and the size of the said land. From such observations it is my considered view that, the Trial Tribunal correctly determined the matter in favour of the Appellant. Determination of the first and second grounds of appeal disposes the entire appeal, thus, I will not determine the remaining grounds of appeal. The Appeal is hereby allowed. Given circumstances in this appeal I do not award costs. Dated at Tabora on this 17th June 2024 Z.D.MANGO JUDGE 13