20190220 TZHC Mwanza2

I ... .!l · ,·; ' \ "'~ '\ __ : ~-:- ... IN THE HIGH COURT OF TANZANIA I IN THE DISTRICT REGISTRY AT\MWANZA : ' MISCELLANEOUS LAND APPEA~ NO. 15 OF 2018 (From the decision of the District Land and Housing Tribunal of Musoma at Musoma in Land Application No. 64 of 2014) I NEHEMIA MWENDWA ........... .l ................................... APPELLANT \ HASSAN KIRI BA ................... \ l. . . . . . . . . . . . . . . VERSUS 1 RESPONDENT JUDGMENT 24/01 & 20/02/2019 \ I I RUMANYIKA, J.: I Appeal is against the 20/10/2016 judgment and decree of the District Land and Housing Tribunal for Musoma (the DLHT), Nehemia Mwendwa I (the appellant) is not happy. \ The 6 grounds of appeal m.ay, but without m1ss1ng a point be rephrased and boil down to one. Th~ DLHT considering it against weightful of t~e evidence on record. Mr. Butambala learned counsel appeared for the appellant, while Mr. Katemi learned counsel appeared for the respondent. .During the hearing, the learned counsel for appellant, but having dropped ground 5 he submitted that the DWl's evidence was, but hearsay. j 'L That the appellant actually obtained the disputed land in 1964. That there had been no problems. Like evidence of the ,respondent was inconsistent and unreliable, the dispute was on boundaries mainly. But the DLHT did_ not visit the locus inquo with a view to establishing its acreage of it. On response, Mr. Katemi submitted that point of the appellant's counsel was not reflective of the records. Appearance or non-appearance of the attorney with powers occasioned no miscarriage of justice, (Section 45 of Cap. 216 refers). DWl's evidence (Exhibit D1) leave alone that of the local chair who witnessed the sale), the seller really owned the disputed land and ' accordingly passed title. Appellant may have been given the land only to build a house yes. But title never passed. As the seller had no capacity. That the DLHT had no duty to visit the locus inquo. Much as the disputed land was only of 50 x" 80 paces size. Appeal has no merits. It is liable to be dismissed with costs. Stressed Mr. Katemi. There is on record, evidence of ,PWl (Nehemia Mwendwa), PW2 (Yohana Swire), PW3 (Julius Kebe), PW4 (Yohana Masige) and DW1 (Nyamugwa Hassan who represented respondent one Hassan Kiriba), DW2 (Hassan Biganio), DW3 (Dina Salum), DW4 (Daud Simba). Its historical back ground is simple and clear; the applicant filed application claiming that the respondent has encroached onto his land (given by father) and uprooted a number of trees worth (250,000) eight hundred fifty thousand shillings. Which land was located at Busagara area, 2 . l .,f ., Kukirango ward in the district of Butiama. The respondent however denied the claims. The central issue is whether the appellant lawfully ·owned the disputed land. The answer is no. Because his evidence that was given the land by father lacked cogent support for what reason? In consideration of natural love and affection? His evidence was, but mere allegations. I From that end evidence will show that the respondent had purchased the disputed land from one Salum Omary_'after he heard it being sold, on which there was a house. As the seller needed the money to pay dowry for his deceased wife. Exhibit Dl refers. Additionally, Salum Omary's wife testified that her husband was the owner of· that land and sold it to the respondent. The respondent's evidence therefore weighed heavier is weightier than the applicant's. It is position of the law in a civil cases that "he alleges must prove". See the case of Attorney General & Others Vs. Eligi Edward Massawe & Others, Civil Appeal No. 56 of 2002 CAT (Unreported). See also provisions of Section 110, 111, 112 and 115 of the Law of Evidence Act, Cap. 6 R.E. 2002. Appeal is therefore dismissed with; costs. Decision of the DLHT is uphold. Ordered accordingly. Right of appeal explained. S.M. ( /N ~E 15/0 019 3 ,I 4