omary athumani mlosa vs msolopo investment co ltd and another 2021 tzhclandd 6741 21 may 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND APPEAL NO. 107 OF 2018 (Appeal from the decision of the District Land and Housing Tribunal for Mkuranga, in Application No. 27 of 2015) OMARY ATHUMANI MLOSA..................................................APPELLANT VERSUS 1 MSOLOPA INVESTMENT CO LIMITED...................... st RESPONDENT RAMADHANI SALUM MDOE.......................................2nd RESPONDENT JUDGMENT Date of last Order: Date of Judgment: 21/05/2021 MANGO, J. The appellant instituted Application No. 27 of 2015 against the respondents contesting unlawful destruction of his houses located at Bigwa area, Mkuranga, Pwani Region. The trial tribunal ruled infavour of the respondents. Aggrieved by the decision of the trial tribunal the appellant preferred this appeal on the following grounds; 1. That the trial tribunal erred in law and fact by delivering decision in favour of the second Respondent without taking into consideration that the appellant is the lawful owner of the disputed land; 2. That the trial tribunal erred in law and in fact by entering judgement infavour of respondent without considering strong i evidence adduced by the appellant and his witnesses concerning the disputed land; and 3. That the trial tribunal erred in law and fact by entering judgement in favour of the second respondent by relying on mere words of the second respondent. The appeal proceeded ex parte against the respondents as they never appeared despite being served with court summons on 8th day of February 2019. The appellant prosecuted this appeal in forma pauperis. He had legal aid services from Legal and Human Rights Centre. The appeal was argued by way of written submission In his submission, the appellant argued that he is the lawful owner of the suit land which he acquired in 1980's. He had developed the land by clearing the bushes and building a house therein. He alleged to have been in peaceful occupation of the suit land before the second respondent claimed the suit land to be his property. He argued the three grounds of appeal collectively as they all concern evaluation of evidence produced during trial. According to the appellant, the trial tribunal erred in fact and in law by holding in favour of the second respondent without taking into consideration evidence adduced by the appellant and his witnesses regarding his ownership over the suit land. He is of the view that his evidence weighs more than the second respondent's evidence. He contended that, although the second respondent alleged to have acquired the suit land through inheritance from his late father. And that his late father acquired the same via purchasing the land from the appellant, the respondent did not tender a sale agreement between his late father and the appellant. He also did not summon any witness to the alleged sale. Citing the 2 case of HEMEDI SAID VERSUS MOHAMED MBILU (1984) TLR 113 the appellant submitted that failure of the second respondent to produce the sale agreement and any other witnesses who witnessed the alleged sale between the second respondent's father and the appellant suggests that if those witnesses would have been summoned, they would have testified against the second respondent. He argued further that, the law, section 119 of the evidence Act, [Cap. 6 R.E 2019] requires a person alleging to be the owner of anything to prove the same. He is of the view that, with the evidence on record, the second respondent failed to prove his ownership over the suit land within the required standards. I have considered submission made by the appellant and court record. As correctly noted by the appellant, his grounds of appeal are centered on a single issue which is evaluation of evidence. This being the first appellate Court, I will consider and re-evaluate evidence produced during trial. According to court record, the following issues were drawn during trial; 1. Whether the respondents legally demolished the suit property 2. Whether the applicant is the lawful owner of the suit property and, 3. To what reliefs are parties entitled. In his testimony the appellant alleged to be the owner of the suit land as he was allocated the same by the village authority. He testified to the effect that he had never sold his land to the second respondent's father. He testified further that the second respondent wrongly demolished his house in the suit land when he was executing a court order issued in a case which was adjudicated between Rukia Manzelele and the second respondent. He highlighted that Rukia Manzelele and the second Respondent are his 3 neighbours. He also argued that his land has never been subject of any court proceedings. The demolition order was directed to Rukia Manzelele but the respondents did not demolish the structure in Rukia Bakari Manzelele's land. His testimony is collaborated by that of PW2 Hassan Mohamed Mkwinda, a tencell leader of Bigwa, the area in which the suit land is located and DW2 Said Ally Ngilini. It was PW2's testimony that, there was a case between the second respondent and Rukia Manzelele. Rukia Manzelele and the appellant were all allocated pieces of land by the village authority. The second respondent came with documents which contained a demolition order against Rukia Manzelele. Instead of demolishing the house of Rukia Manzelel as ordered by the court, the respondents demolished two houses belonging to the appellant. One house had three bedrooms and a sitting room. It was roofed by Iron sheets and it had strong windows. The other house was merely a hut roofed by grasses. Rukia Manzelelle's house was not demolished. He does not know why the appellant's houses were demolished instead of Rukia's house. DW2 testified to the effect that there was a dispute between second respondent and Rukia Manzelele. The dispute is not new as it started between the second respondent's father and the husband of Rukia Manzelele. Rukia's husband crossed the bounderies and trespassed into the neighboring land owned by the second respondent's father. He was a tencell leader by that time but he failed to mediate the dispute between Rukia's husband and the second respondent's father. The matter was mediated by the village council. After the death of Rukia's husband and the second respondent's father, Rukia trespassed again. The second respondent filed a case at the Ward tribunal and he was declared the owner of the suit land. 4 The second respondent had two arguments regarding the demolition of the suit land. First he argued that the appellant sold the suit land to his father. This argument was not backed up with any evidence. It is trite law that whoever allege must prove. The second respondent merely argued that the appellant sold the suit land to his late father but he did not tender any evidence to support his allegations. He mentioned that the appellant had ones admitted before the village council to have sold his land to the second respondent's father. Unfortunately no member of the village council testified on the appellant's admission to have sold the suit land to anybody. In such circumstances the arguments by the second respondent remained to be mere words that cannot safely be relied upon by this court. The law section 110(1) and (2) requires whoever allege existence of facts that gives him any legal right or liability, to prove the existence of such facts. His second argument is that the suit land does not belong to the appellant. It belongs to Rukia Manzelele and the house demolished belonged to Rukia Manzelele. He insisted that the respondent had sold his land to the second respondent's father. The transaction was witnessed by a number of witnesses and that even the appellant's brother testified in favour of the second respondent during trial at the ward tribunal. Court record establishes that the appellant was not party to the case before the Ward Tribunal. The case was between the second respondent and Rukia Bakari Manzelele as reflected in Execution Application No. 15 of 2014 between Ramadhani Mdoe versus Rukia Bakari Manzelele. Kinondoni District Land and Housing Tribunal indicated clearly that the application is for execution of the Decree issued by Mwarusembe Ward Tribunal in a case which was between Ramadhani Mdoe and Rukia Bakari Manzelele. For that reason it cannot be presumed that the issue of appellant's ownership over the 5 suit land was deliberated in the course of a trial in which the appellant was not parry to the case. The demolition order was issued specifically against the properties of Rukia Bakan Manzelele and not the appellant. Thus, the action of the first respondent to demolish houses belonging to the appellant instead of those belonging to Rukia Bakari Manzelele does not have any legal justification. I am of a considered view that evidence adduced by the appellant weigns more than that of the second respondent which was basically mere words. The court cannot work on mere words. For that reason the appeal is hereby allowed and the court issues the following orders. The decision of the trial tribunal is hereby quashed and set aside. The appellant is declared the owner of the suit land. In the other reliefs prayed by the appellant, this court awards Tanzanian Shilings Five Million (Tshs. 5,000,000/-) as general damages. As the appeal was prosecuted in forma pauperis, no costs are awarded. Or 7/1 572 x. Z. D, MANGq JUDGE 21/05/2021 6