ONESMO NDESAYO vs REGINA MAHWELA LAND APPEAL NO

© THE JUDICIARY OFT ANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OFTANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) LAND APPEAL NO. 42 OF 2023 ONESMO NDESAYO COMPLAINANT / APPELLANT / APPLICANT I PLAINTIFF VERSUS REGINA MAHWELA RESPONDENT I DEFENDANT JUDGMENT Fly Notes Facts Ratio Decidendi 4th of June 2024 Hon. RWIZILE.: This appeal is from the decision of District Land and Housing Tribunal of Kasulu (to be referred herein as Tribunal), application No. 66 of 2022. The appellant has been in constant dispute with the respondent for a piece of land of approximately 2.5 acres situated at Bugere area, of Nyamyusi in Kasulu District for over five years now. The appellant first filed a dispute at Nyamyusi ward tribunal in 2021, where he lost. He successfully appealed to Tribunal in Appeal No. 30 of 2022, where the proceedings of the ward tribunal were nullified for jurisdictional issues. The respondent then filed the impugned application over the same land and was declared a lawful own of the suit land in 2023. This victory did not satisfy the appellant who filed this appeal forwarding three grounds of appeal as hereunder. 1. That, the District land and Housing Tribunal erred in both law and fact for failure to put into consideration the evidence of the appellant and his witness that it is the appellant who was in use and still in use of the disputed land since 1985 after the land was bought by his mother MUZIRAMPAYE MKELI (DW2) aged 90 years instead relied on weak evidence of the respondent which was contradicting on the size of the disputed land and boundaries. 2. That, the District land and Housing Tribunal erred in both law andfact forfailure to scrutinize the evidence adduced at the tribunal by the appellant and his witnesses that indicated that the land that was given to the Hon. AUGUSTINE RWIZILE Page. 1 respondent's father from MB OGE was only one acre, and the rest was not his but owned by the appellant's mother. 3. That, the District land and Housing Tribunal erred in law andfact infailure to apply properly the principle of adverse possession of which the appellant's land was not abandoned for the Tribunal to give the land to the respondent basing on the wrong applicability ofprinciple. At the hearing of this appeal, both parties who were unrepresented, preferred to argue their appeal by written submissions. Submissions were brief and filed in time. The appellant with the first right of audience submitted on all grounds seriatim. On the first ground, it was submitted that he was given the land by his mother who bought it from Mboge in 1983. According to him, there was no dispute in respect of the that land to the extent that in 2016 he bui It a house therein. He said, since the respondent said to acquire the land in 1974 and filed her application in 2018, she should not benefit from the principle of adverse possession, because it is the appellant who was on constant use of that land. To support his point, he cited the book entitled, THE CUSTOMARY LAND OF TANZANIA, by W. James and G.M Fimbo, the cases of the Registered Trustees of Holly Spirit Sisters vs January Kamilly Shayo and 136 others, Civi I appeal no. 193 of 2016, and of Gibson Kalishanga vs Mariam Yotham, Misc. Land Appeal No. 32 of 2021. The second ground, he argued that the evidence of the respondent was not evaluated. He added that the shamba was under the appellant's possession since 1983. On this, he cited the cases of Leonard Mwanshoka vs R. [2016] TLS 41, Mkulima Mbagala vs R. criminal Appeal No. 267 of 2006 and Shantilal M. Ruwala vs Republic, [ 1957] E.A 570. The appellant doubted the evidence of the respondent that she was given land when she was in standard 6. He finally called upon this court to re-evaluate the evidence. The third ground was argued in that, the doctrine of adverse possession was not properly applied in favour of the respondent. It was insisted that adverse possession can be used as a sword and not a shield, as it v. as decided in the case of Hon. Attorney vs Mwehezi Mohammed (as administrator of the late Dolly Maria Eustace) and 3 others, Civil application No. 314/12 of2020 (CAT). Opposing the appeal, the respondent had this to submit, that cases are worn by presentation of strong evidence. She said, it is the respondent who qualified this test. It was her submission that the one who allege must prove as held in the case of Abul Karim Haji vs Raymond Nchimbi Aloice and another, Civil Appeal No. 99 of 20004. It was submitted further that the appellant did not prove how the land came into his possession through adverse possession Having heard the submissions of the parties, this being the first appeal, it is important therefore to make a recap of the evidence at the trial. Regina Mahwela, Pwl, said that the land in dispute is estimated at 15 acres while over 2 acres was trespassed into by the appellant. It was her evidence that she was given that land by her father (Mahwela) in 1974 when she was in standard 6. Her witness was Pantaleo Mboge, Pw2, said, he neighbours the parties to this case. His land is in the south while they are in the north side. He said, the appellants family bought land from Mzee Mboge. He said, it Page.2 Hon. AUGUSTINE RWIZILE was in the I 980's when he started seeing them in the neighborhood. According to his evidence, Pwl has been consistently living there without any conflict of boundaries until 2018 when the dispute arose between them. It was his evidence that the appellant crossed the demarcation to the land of the respondent. The appellant Onesmo Ndesayo, Dw l , testified that the respondent's father was given one acre by Mzee Mboge. His family bought 7 .3 acres in 1983, when quarter of the acre was invaded in 2018 by Pwl after the death of her father. According to him, Pwl came in that area in the 1980's. His witness was Muzirampaye Mkeli, (Dw2), said did not know the boundaries between Mboge and Mahwela. Sada Mkeli (Dw3), a wife of the late Mr. Mboge, testified that it is Mahwela who invaded the land. His last witness was Said Kazizi (Dw4), he had nothing to support the evidence ofDwl. I think, it was the duty of the respondent to prove that she did not only own over 15 acres of land which she inherited from her father, but also had the duty to prove that over 2.5 of the land was trespassed into by the appellant. Her evidence only showed the land belonged to her through getting it from her father. That was done when she was in standard 6 and it was in 1974. Despite being unrealistic in the look of things because she could not grasp the doing because of her alleged, but her evidence is not backed by supporting documents or other witnesses. Dw3 who was the wife of Mboge was of the evidence similar to Dw 1. It is clear to me that, Dw3 was 100 years at the time of testifying was better placed to know what indeed happened. In the absence of the evidence proving how her father acquired that land; it cannot be said she proved her case to standard required. From the foregoing, it is clear to me that the appeal has merit. It is allowed. The decision of the tribunal is quashed, and order set aside. Based on the nature of the case, I do not find it plausible award costs. Dated at KIGOMA ZONE this 4th of June 2024. AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Hon. AUGUSTINE RWIZILE Page. 3