nurdin s nassoro vs tengus chiwalanga 2020 tzhclandd 2 9 march 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 126 OF 2018 (An Appeal Originating from the Judgment and Decision of the District Land Housing Tribunal for KHombero/Uianga at Ifakara in Land Appeal Case No.255 o f2016 2017 arising from civil case no. 26 of 2016, Usangule Ward Tribunal) NURDINI S.NASSORO........................................ ........APPELLANT VERSUS TENGUS CHIWALANGA........................................... RESPONDENT JUDGMENT ON APPEAL S.M. MAGHIMBL J: This is a second appeal whereby the appellant, being aggrieved with the whole of the judgment and decree of the District Land and Housing Tribunal for Kilombero/Ulanga at Ifakara ("The Tribunal") in Land Case Appeal No.255 of 2016 delivered on the 24th July, 2018, hereby appeals against the said judgment on the following grounds; 1. That the appellate chairperson erred both in law and fact for entertaining the appeal while the person who sold the suit property to the appellant was not joined as a necessary party to the original case at ward Tribunal and erroneously declaring the respondent as the owner of the suit premises. i 2. That the appellate chairperson erred both in law and fact for failure to properly weigh and examine the evidence on record and erroneously declared the respondent as the lawful owner. 3. That the appellate chairperson erred both in law and fact for declaring the respondent as the lawful owner of the suit premises basing on contradictory evidence to the effect that before and at the time the appellant was purchasing the suit property, there was neither cassava plantation nor any development on the suit property. It is Appellant's prayer that the judgment, decree, and proceedings of the Tribunal be quashed and set aside. By the court's order dated 20/08/2019, the appeal was disposed by way of written submissions. The appellant filed his appeal on time as per the scheduling order was the respondent did noy file any reply. Before going into the substance of this appeal, the brief background leading to the current appeal is narrated. In December 2015, the appellant arrived at Mtimbira Village of Usangule Ward looking for a piece of land to construct a godown. The appellant successfully purchased the piece of land from one Yahaya Janatu and the Village Chairman blessed the purchase. In 2016 the appellant found the respondent planting cassava plants in the suitland. At that time the appellant was in the process of inserting beacons to mark his land. Following the confusion, the appellant successfully lodged Land Case No. 26/2016 at the Usangule Ward Tribunal ("the trial tribunal"). Aggrived by the decision of the trial tribunal, the respondent herein successfully at the first appellate tribunal hence this appeal. 2 In his submission to support the appeal, the appellant argued the second and third grounds of appeal together submitting that the decision of the District Land and Housing Tribunal is principally based on the application of Section 45(1) of the Village Land Act, 1999 Cap 114 R.E. 2002 ("The Act") to the Evidence tendered by the parties when testifying before the trial tribunal. He quoted the Section 45 of the Act which provides: "Land held for a customary right o f occupancy shall be taken to be abandoned where one or more o f the following factors are present: (a) The occupier has not occupied or used the land for any purpose for which land may lawfully be occupied and used, including allowing land to lie fellow, in the village for not less than five years" He argued that as per analysis of the evidence and the findings of the tribunal, it is not in dispute that prior to the acquisition of the land in dispute by the Respondent, the land was lawfully owned by the person who sold the land to the appellant one Janatu Yahaya. That the same is also the findings of the tribunal at page 3 of its judgment. He submitted further that the evidence relied upon by the appellate Tribunal that Janato abandoned the land in dispute, is that there were developments made by the appellant on the land in dispute, which is the planted cassava. The appellant argued that findings of the Tribunal to that effect are erroneously arrived because according to the evidence on record, in December 2015 when the appellant purchased the land in dispute from Yahaya Jonatu there was nothing planted on the suitland. Further that the appellant found cassava planted on the land in dispute eight months after he purchased it. The appellant finalized his submission by posing a question that, if what the Tribunal said is true, that when the respondent acquired the land in dispute it was long abandoned, then why all the evidence by the appellant and the Village chairman suggest that in 2015 when he visited the Land in dispute for purposes of purchasing it there were no any development? Having gone through the records of this appeal and the appellant's submission, I must emphasis that the appeal at hand is against conflicting findings of the two tribunal on the issue of evidence, on my part, I find that the main contention of the appellant is on the interpretation of law of abandonment of land in relation to the evidence adduced during trial. The appellant's argument is that when he came to the suitland, it was still abandoned and the respondent cleared the land after the appellant purchased it. Having gone through the records of this appeal, the respondent adduced evidence to show the suit premises has been in his occupation since 2008 when he cleared a bush land. According to the evidence, indeed, prior to the acquisition of the suitland by the respondent, the suit Land was a natural premise of Yahaya Janato clan but the evidence is clear that the land was abandoned for a long time as such, when the appellant went to acquire it, it was just an abandoned bush land. The evidence is also clear that when the appellant went to buy the suit premise it was in development by respondent who had planted some cassava and other crops. The purported vendor to the appellant did not adduce evidence on whether or not the land was abandoned by his family or if not, why was the respondent in undisturbed occupation of the suitland for seven years before the same was sold to the appellant. According to the quoted Section 45 (1) of the Act, the Land occupied customarily is deemed to be abandoned when it is not in use for the purpose occupied for for more than 5 years. The respondent's undisturbed occupation of the suitiand from 2008 until 2015, which is 7 years is sufficient to conclude that the said land was abandoned. The appellant was hence required to bring tangible evidence to show or prove that the said land was never abandoned, something which he failed to do. Having made those findings, I am satisfied that the disputed land belongs to the respondent herein and the therefore I find no reason to fault the findings and decision of the Tribunal. The appeal is hereby dismissed with costs. Dated at Dar es Salaam this 09th dav of March 2020. JUDGE. 5