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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO 5238 OF 2024 (Originating from Land Application No. 20 of 2022, From the District Land and Housing Tribunal for Kyela at Kyela) NEVER DAIMON MWAKALIKU…………..……..….……..…APPELLANT VERSUS HEZRON MWAKYUSA……………...……..………………….RESPONDENT JUDGMENT Date: 7 August 2024 & 6 November 2024 SINDA, J.: The appellant is aggrieved and wishes to challenge the decision of the District Land and Housing Tribunal for Kyela at Kyela (the DLHT). The brief facts of the case are that both the appellant and respondent herein claim ownership over a piece of land located in Itope village, Bujonde ward within Kyela District and Mbeya region (the Disputed Land). The appellant claims 1 that the Disputed Land was given to him by his father, Anyosisye Mwakaliku (the Deceased). Whereas, the respondent alleged that he bought the Disputed Land from one, Daimon Mwakaliku, the appellant’s brother. The matter was first referred to the ward tribunal where the conflict remained unresolved. The appellant then unsuccessfully sued the respondent at the DLHT. Dissatisfied with the decision of the DLHT, the appellant brought this appeal on the following grounds: 1. That, the trial tribunal erred in law and facts to declare the disputed land is the respondent’s Land, while there was no any proof of the sale agreement adduced by the respondent. 2. That, the trial tribunal erred in fact and law, to rely on the baseless evidence of the respondent, while he has been welcomed by the appellant’s family with the appellant’s consent. 3. That, the trial tribunal erred in fact and law to decide that, a clan land can be in inherited by a person who given such a disputed Land, if there is no any resistance by anybody. 2 4. That, the trial tribunal erred in fact and law, for failure to consider that the disputed Land has no any consideration of which occupied by the respondent, and was not registered. 5. That, the trial tribunal erred both in facts and law, for failure to evaluate evidence, adduced by the appellant’s witnesses and hence renders wrong decision. The hearing of the appeal was by way of written submissions. The appellant was represented by Ms. Pamela Kalala, learned counsel. The respondent appeared in person, unrepresented. In her submission in chief, Ms. Kalala argued the first and second grounds of appeal together. That, the respondent did not produce any sale agreement or the neighbors to prove that the Disputed Land was sold to him. She added that this proves that the Disputed Land was not sold to the respondent. That, the respondent was only invited into the Disputed Land by Daimon Mwakaliku with the appellant’s consent in 1994. Supporting her arguments, she provided the case Magoiga Nyankorongo Mriri vs Chacha Moroso Saire, Civil Appeal No. 464 of 2020 that cited the case of Barnabas Yohanna Shedafa (Legal Representative of the Late Yohanna Shedafa), Civil Appeal No. 101 of 2018 (Unreported). 3 On the third ground, the counsel explained that in the DLHT judgement (the Judgment), new fact was introduced. That, a clan land can be inherited by a person, if there is no resistance. The counsel added, this is a new fact because even the parties did not mention it anywhere in the record. Discussing on the fourth ground, the counsel submitted that the appellant mentioned that he did not register the Disputed Land. She added that the dispute arose in 2020 when the respondent wanted to register the Disputed Land while it did not belong to him. That is when the appellant sought an order to stop the respondent from his pursuit, through his ten cell leader, PW2. On the fifth ground concerning evaluation of evidence, Ms. Kalala faulted the DLHT for failure to evaluate the same. She was of the view that the appellant’s evidence during trial corroborated from one witness to another. She added that the appellant’s evidence was not inconsistent. That is, the respondent was invited into the land as abovementioned and that the appellant was given the land by his late father in 1980’s before his death. The argument was cemented by PW4, who by the time he was 13 years old. PW4 testified after attaining the age of majority. In support, she cited section 4 127(7) of the Tanzania Evidence Act [Cap 6 R.E 2022) (the TEA) and the case of George Jonas Lesilwa vs The Republic, Criminal Appeal No. 374 of 2020 Court of Appeal in Moshi. The counsel continued, that PW3 mentioned the Disputed Land was occupied by one Daniel Mwakasonda, a fact that even the respondent acknowledged. She added, the respondent contradicted himself by stating the appellant sold five pieces of land while initially he mentioned there were only four pieces of land. Miss Kalala cited the case of Emmanuel Abraham Nanyaro vs Peniel Ole Saitabau [1987] TLR 47. The counsel continued that the respondent failed to call potential witnesses to strengthen his case, thus goes contrary to Section 3(2) of the TEA. Also cited the case of Hemedi Saidi vs Mohamed Mbilu [1984] TLR 113. She was also of the view that the evidence by the respondent and his witness (DW2) was inconsistent and full of contradictions. Moreover, during the visit at Locus in quo, while the appellant showed his boundaries, the respondent did not ask any question or cross examine the appellant. 5 Submitting against the appeal, the respondent prayed to argue the first, second and fifth grounds of appeal together. It was the respondent’s submission that, the DLHT was right to decide the Disputed Land belonged to him. He stated that the appellant failed to prove ownership at the required standard. Thus, goes against the provisions of Section 110 (1) of the TEA. He added that the respondent managed to prove acquisition and ownership of the said land since 1994 to 2020 when the dispute arose. The respondent continued that during trial at the DLHT, the appellant shifted the burden of proof to the respondent. While the respondent stated clearly that he acquired the disputed land through an oral agreement from the brother of the appellant. In support, he moved the court to visit the case of Paulina Samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 CAT (Unreported). He argued further, that the appellant claims that the respondent was invited in the Disputed Land. But no evidence was produced during trial to prove the same. Considering there is a lot of contradictions on the appellant’s evidence on how the respondent was invited to the land. He added that the case cited by the appellant’s counsel is distinguishable to the matter at hand. Since the cited case dealt with ownership under adverse possession. While 6 in the present matter, the respondent acquired the Disputed Land through oral sale agreement. He continued to this moment it is unclear as to which land is the Disputed Land. That, is it the clan land or the land that the appellant claims to own under his capacity, the same being given to him by his father. He added, even PW2, the ten cell leader stated he never received any complaints since 1996 to 2020. This shows that the respondent enjoyed the Disputed Land without any interference. Additionally, he stated that the DLHT decided in favour of the respondent basing on weak evidence of the appellant. He was also skeptical of the fact that the appellant claim the land was transferred to him by his father in 1980 when he was 12 years old. Adding a child in Tanzanian laws cannot own land at such age without a legal guardian. In Locus in quo, the respondent submitted that after the visit, the DLHT cleared all doubts on the evidence adduced during trial. Hence, reached a right decision. Moving to the third ground, the respondent argued that the appellant’s counsel misdirected herself on the interpretation of inheriting clan land 7 without resistance. He clarified, that he was neither given the land as a clan member nor does his long stay over the land amounts to him inheriting the land. Nonetheless, the DLHT did not imply the respondent acquired the clan land rather he bought the said land from PW3 who had inherited the clan land without any resistance from the clan members. Replying on the fourth ground, it was the respondent’s submission that he produced a customary right of occupancy before the DLHT to prove he successfully registered the land acquired from the brother of the appellant, Daimon Mwakaliku. That even the village counsel of Bujonde was involved in the process and agreed that the respondent is the legal owner of the Disputed Land. In her rejoinder, Ms. Kalala reiterated most of what she stated in her submission in chief. However, she added that the appellant was indeed absent when the respondent was invited to the land. Thus, he could not know who his brother was accompanied with when he welcomed the respondent. She continued, that the respondent raised new issues that were not subject to determination before the DLHT. For instance, he posed a question as to exactly which land is in dispute. In doing so, he went contrary to the provisions of Order VI Rule 7 of the Civil Procedure Code [Cap 33 R.E 8 2019] (the CPC). She also cited the case of John M. Byombarirwa vs Agency Maritime Internationale (Tanzania Ltd) TCA 13 [1983] TLR. The counsel was of the view that, the act of the respondent to plant permanent crops and being on the land for 29 years, does not invalidate him from being an invitee. Where she referred to the case of Magoiga Nyankorongo Mriri (Supra) above. Furthermore, Ms. Kalala rejoined that the respondent misdirected himself by his contention that the appellant’s father could not legally transfer the land in 1980 because the appellant had not yet attained the age of majority. She added that during that time the appellant was away and his brother, Daimon Mwakaliku, acted as the guardian. The counsel also explained, the law does not prevent a child to be given a gift as long as he is knowledgeable enough. That, the respondent did not provide which law prevents the transfer of land to a person under the majority age. On the issue of locus in quo, the counsel faulted the same by stating it cleared no doubts to secure the respondent’s success to the case. She insisted that the one with heavier evidence must win the case. That, the appellant’s evidence surpassed that of the respondent. Therefore, Section 9 110 (1) of the TEA and the case of Paulina Samson Ndawavya (Supra) as cited by the respondent during his reply are not applicable in the case at hand. In conclusion, Ms. Kalala emphasized that the issue of the respondent being given the Disputed Land was assumed by the DLHT. The parties did not mention it anywhere on record. I have carefully considered the arguments, laws, case laws and the DLHT records put before me. I will now deliberate on whether I find this appeal with merit. To begin my discussion, I will address the fifth ground of appeal, concerning evaluation of evidence. I do agree in civil cases the principle of “He who alleges must prove” is highly applicable. As provided Under Section 110(1) of the TEA and in a number of court decisions, such as that of Attorney General & Others vs Eligi Edward Massawe & Others, Civil Appeal No. 86 of 2002 CAT (Unreported). However, there are some instances where both parties to a case are required to prove the facts that they allege. The matter at hand is of ownership of the Disputed Land. Both parties are claiming to be lawfully owners of the 10 Disputed Land. As such, I believe the duty was not only bestowed upon the appellant. It is also extended to the respondent. In doing so, the principle that would rightly determine the matter is that provided in the case of Hemedi Saidi vs Mohamed Mbilu (Supra). That is, the one whose evidence is heavier wins the case. The main issue raised before the DLHT and subject to this appeal as shortly mentioned is: who is the owner of the Disputed Land. The appellant brought witnesses and exhibits to prove the Disputed Land was given to him by his father. Exhibit S1 is a caveat placed by the appellant against the issuance of the customary right of occupancy to the respondent, which was placed at the village office. The respondent as well brought a witness and exhibits, including the said customary right of occupancy to confirm he owns the Disputed Land as he bought it from the appellant’s brother one Daimon Mwakaliku. Essentially, the law recognizes ownership of land that was given as a gift or transferred from a parent to a child. The same was explained in the case of Joachim Ndelembi vs Maulid M.Mshindo & 2 Others, Civil Appeal No. 106 of 2020 that stated; 11 “Similarly, in the instant case, we have no reason of faulting the DLHT and the High Court in their concurrent findings that the land originally belonged to PW2 having acquired it from his late father and that it is from him that the transfers of that piece of land began till it reached the first respondent.” In the same way, the law recognizes ownership of land through purchase, from a person with a good title to dispose of the land. At this juncture a fact that is not doubtful is that the Disputed Land was once owned by Anyosisye Mwakaliku, the appellant’s father. This fact is admitted by both the appellant and the respondent. As, I evaluate the evidence, beginning with that of the respondent. He claimed to have bought the Disputed Land from Daimon Mwakaliku. He stated that when he was buying the land they did not have a written agreement. He stated that the witnesses when he was buying the Disputed Land was his wife and the appellants mother. To prove the same, he brought a witness (his wife) and a copy of the customary right of occupancy. The customary right of occupancy was tendered and received at the DLHT as Exhibit D1. From the records, the dispute between the parties arose in the year 2020 when the respondent begun the process to acquire the title to the Disputed Land. He acquired the title in 2021. 12 Be that as it may, even if the said customary right of occupancy is considered legit. It is trite law that one cannot prove ownership without first proving the seller had a good title to dispose of the land. The same was discussed in the case of Kusekwa Nyanza vs Christopher Mkangala, Criminal Appeal No. 233 of 2016, which provided at page 9: “In that regard, they had no good title over the plot which they could pass over to the respondent.” In the present matter, the respondent did not avail any evidence to the effect that Daimon Mwakaliku, the seller, had a good title. Besides, the seller himself denied ever selling the Disputed Land to the respondent. In fact, he stated that the respondent was only invited to use the Disputed Land for some time during a period when the appellant was away. As for the witnesses, failure of the respondent to call material witnesses, specifically neighbors to the Disputed Land that he has alleged possessed over a long time, creates doubt. As a result, it questions the ownership he claims to have over the Disputed Land. This is in line with the case of Rehani Said Nyamila vs Republic, Criminal Appeal No. 222 of 2019 that cited the case of Boniface Kundakira Tarimo vs Republic, Criminal Appeal No. 350 of 2008 where it was held that: 13 "It is thus now settled that, where a witness who is in better position to explain some missing links in the party's case, is not called without sufficient reason being shown by the party, an adverse inference may be drawn against that party, even if such inference is only permissible." It also does not escape me that the respondent does not have any sale agreement to prove that he indeed purchased the Disputed Land from Daimon Mwakaliku. He therefore depended on the customary right of occupancy to prove ownership. Nonetheless, it is evident he failed to bring material witnesses to prove that fact. For instance, he did not call neighbors to the Disputed Land that witnessed when the Land was being surveyed in order to obtain the said customary right of occupancy. Further, he failed to bring members from the Itope Village Council of that issued the customary right of occupancy to him. Members from the Itope Village Council would not only have proved that he truly owns the Disputed Land, but also that PW3, the appellant’s brother actually sold the Disputed Land to him. I felt the need to keenly evaluate the respondent’s evidence because the Disputed Land being in the appellant’s territory, required the respondent to go an extra mile in showing that he was and is legally entitled to be in the Disputed Land. The respondent raised a concern that by the time the Disputed Land was supposedly given to the appellant by his father, the 14 appellant had not yet attained the age of majority. Hence per the Tanzanian laws, such transfer would be illegal. In my understanding there is no provision of law that forbids a parent from giving land to his child as a gift. As stated in the Proceedings, the Disputed Land was supervised by Daimon Mwakaliku as the appellant was away. Therefore, the appellant was never in full possession during his tender age. I also noticed some contradictions from the appellant’s evidence. As I perused the records, I noticed in Exhibit S1, the Disputed Land was said to belong to the clan. But in most of the remaining records the Disputed Land is said to belong to the appellant. That aside, I believe based on the circumstances and available evidence, the appellant’s case was more convincing compared to that of the respondent. He managed to bring witnesses who supported his allegations. Including PW2, one Gordon George Mwakuji, a ten-cell leader who confirmed the Disputed Land belongs to the appellant. PW2 also stated to have never witnessed or heard the respondent buying the Disputed Land from the appellant’s brother. 15 That being the case, due to shortcomings on the respondent’s evidence and as per the principle established in the case of Hemedi Said (Supra), I find that the fifth ground of appeal with merit. I do not see the need to discuss the remaining grounds provided herein. In consequence thereof, the appeal is hereby allowed. I proceed to quash the decision and orders of the DLHT. There is no order as to costs. It is so ordered. Right of Appeal explained. DATED at MBEYA on this 6 day of November 2024. A. A. SINDA JUDGE 16