PETRO MARTIN 222 Edited

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA

AT BABATI LAND APPEAL NO. 8013 OF 2024 (Originating from Land Application No. 45 of 2023, District Land and Housing Tribunal for Mbulu at Dongobesh) PETRO MARTIN................................................................... APPELLANT

VERSUS MAYKO YUDA................................................................. RESPONDENT

JUDGMENT 10th July & 25th September, 2024 D. C. KAMUZORA, J. Before the District Land and Housing Tribunal for Mbulu (hereinafter referred to as the trial tribunal), the Appellant sued the Respondent for recovery of a piece of land measuring about 3A acre situated at Genda village, Dinam ward in Mbulu district (hereinafter referred to as the suit land). The Appellant claimed that, he acquired the suit land from his father sometimes in 2015 and he continued occupying and utilizing the same until 2022 when the Respondent trespassed and removed demarcations and grazed cattle therein. The Appellant claimed that he tried to settle the dispute amicably before Dinam ward tribunal but in vain and the certificate to the effect Page 1 of 10 was tendered before the trial tribunal. The Appellant claimed for declaratory order that he is the lawful owner the suit land and an order for the Respondent to vacate the suit land and be restrained from entering the suit land and costs of the matter. The Respondent disputed the Appellant's claim and claimed to have been given the suit land by his father in 1995. He denied being a trespasser and blamed the Appellant for trespassing to his land in 2022. The Respondent therefore prayed to be declared a lawful owner of the suit land. After hearing the parties, the trial tribunal, dismissed the Appellant's claim and declared the Respondent as the lawful owner of the suit land. The Appellant was aggrieved with the trial tribunal's decision and preferred the instant appeal with five grounds of appeal which can be summarized and reduced into two grounds as follows; 1. That, the trial tribunal erred in disregarding the Appellant's credible and reliable evidence while relying on weak evidence of the Respondent.

2. That, the trial tribunal erred by not visiting the locus in quo. When the appeal was called for hearing, only the Appellant entered appearance. The Respondent did not enter appearance despite being served thus, the appeal proceeded ex parte against the Respondent. Page 2 of 10 In his submission in support of appeal the Appellant submitted generally that, he was not satisfied with the decision of the trial tribunal since he was given the suit land by his father who also got the same from his grandfather in 1995. That, his father was using the suit land until 2015 when he gave it to him and the Appellant has been using the suit land since then and until 2022 when the Respondent trespassed and shifted the boundaries taking about 3/4 acre. The Appellant faulted the trial tribunal for not considering his evidence and for not visiting the locus in quo to verify if the boundaries were shifted by the Respondent. He argued that the Respondent forged the documents claiming that he was allocated the suit land by his father, the evidence which was contradictory. The Appellant was of the view that the trial tribunal ought to have considered that when his father was allocated the suit land, no document was executed. That, the trial tribunal erred for holding that since there was no document then ownership was not proved. That, it was wrong to assume that ownership of land cannot be proved

without document. He therefore urged this court to allow the appeal. Having gone through the Appellant's submissions and the record, there are two issues for determination; whether the trial tribunal properly analyzed the evidence on record and whether in the circumstance of the Page 3 of 10 case it was necessary to visit the locus in quo. In order to determine the above issues, this court find it necessary to re-assess the parties' pleadings and evidence before the trial tribunal. In his evidence before the trial tribunal, the Appellant claimed that the suit land was originally owned by his grandfather one Ng'aida Hape who gave it to the Appellant's father in 1995. That, the father gave the Appellant the suit land in 2015 and he continued using it until 2022 when the Respondent who is Appellant's uncle (baba mdogo) trespassed and uprooted the demarcations. That, the Appellant complained to the village office but the matter was remitted to the village elders and clan elders for reconciliation. That, during elders' meeting, the matter was resolved in Appellant's favor and the sisal demarcations were restored. The minutes giving land to the Appellant as well as minutes for the elders' meeting were admitted as exhibit Ml before the trial tribunal. It was further testified that, on 17/08/2023 the Respondent uprooted the demarcations again thus, the Appellant filed a complaint

before the ward tribunal for mediation. That, after the mediation failed, he instituted a suit before the trial tribunal. He insisted that the Respondent has never used the suit land thus, could not be the owner of the same. The Appellant's evidence was supported by four other witnesses including his father Martin Yuda (SM2). He claimed to have acquired the Page 4 of 10 suit land from his uncle (baba mkubwa) Ng'aida Hape in 1995 in the presence of the Respondent and other two people who are now the deceased. That, he used the suit land all the time until when he gave it his son (the Appellant herein) in 2015. Other witnesses; SM3, SM4 and SM5 supported the fact that the Appellant was given the suit land by his father and the fact that the dispute was resolved by elders in favour of the Appellant in which the demarcations were restored. The Respondent on the other hand claimed that he got the suit land from his father in 1995. That, after he was allocated the suit land, he was using it for grazing and in November, 2013 he constructed the water well therein. That, he was reported at the police station for grazing cattle in Appellant's land and he was charged and convicted for criminal offence. That, later the matter was referred to the elders who concluded that he was the owner of the suit land. The handover document, the minutes for the elders meeting and a letter to the police

station were admitted as exhibit UI. The Respondent's evidence was supported by four other witnesses who supported the fact that he was allocated the suit land by his father. SU2 and SU3 claimed to be present at the time the Respondent was given land by his father. Other witnesses, SU4 and SU5 claimed that they knew Page 5 of 10 the Respondent as the owner of the suit land for they were so informed and they have seen the Respondent using the suit land. From the above evidence, both the Appellant and the Respondent claimed to be given the suit land by their fathers. While the Appellant paraded his father before the trial tribunal to justify that he was the one gave the suit land to the Appellant, the Respondent tendered a letter showing that he was given the suit land by his father. While the Appellant presented five witnesses to support his evidence, the Respondent did the same by presenting four witnesses to support his defence. In his judgment, the learned trial chairperson observed that the Appellant failed to prove his claims for the evidence adduced by him and his witnesses were mere words. That, the Appellant failed to prove how his father acquired the suit land since the witnesses who were present at the time the Appellant's father was given the land have all passed away. The trial tribunal was convinced with the Respondent's evidence on account that the Respondent had a

document proving that his father gave him the suit land. From the trial tribunal's records, this court noted contradictions in the size and boundaries of the suit land, a fact that was not deliberated upon by the trial tribunal. My thorough perusal to the pleadings, evidence by the parties and their witnesses and exhibits tendered revealed Page 6 of 10 contradiction in the size and location of the suit land. In his application form, the Appellant claimed that the size of the suit land is 3A acre with the following boarders; north- Marko Yuda, south- Roman Catholic church, east- water stream, west-Mudlan Nade but when testifying before the trial tribunal, the Appellant stated that the suit land has the following neighbors; north- Mayko Yuda, south- Martin Yuda, East- water stream and west- Mudlan Nade. Exhibit Ml refers to two minutes; the one dated 27/03/2023 and another dated 16/09/2015. The minutes for the elders meeting dated 27/03/2023 show that the land for Michael Yuda (the Respondent herein) is located between John Nada and Petro Martin (the Appellant herein) with the size of 57 meters width and 110 meters length but the minutes for family's meeting dated 16/09/2015 indicates that the Appellant was allocated land by his father measuring 50 meters width and 115 meters length bordered with; east- water stream, west- Mudlan Nade, south- Martin Yuda and north- Giye Yudas.

Therefore, the above evidence creates the remarkable differences regarding the boarders to the suit land. Similar contradiction was also observed in the defence. In his written statement of defence, the Respondent claimed that the size of the suit land is not 3A acre claimed by the Appellant rather 81 paces width and 67 paces length but in his evidence, he claimed that the size of the Page 7 of 10 suit land is one acre. He tendered a document exhibit UI showing that he was given land measuring 121 paces length and 67 paces width. The boundaries indicated in the written statement of defence and Respondent's evidence are as follows; North- Masouda Gwaydi, South- Ngayda Hhape, East-water stream and West- Dughagw Hhape. However, his witnesses described the boundaries differently. SU2 described the boundaries of the suit land as North- Gidale Gwaydi, South-Nga'yda Hhape, East-Yuda Gwaydi and West- Martin Dughang'w. SU3 described the boundaries of the suit land as; North- Masoda Gwaydi, South-Ng'ayda Hhape, East- Water stream and West- Dughang'w Hhape or Daniel Hhape. SU4 described the boundaries of the suit land as; North- Gidale Gwaydi, South-Ng'ayda Hhape, East- Water stream and West- Daniel Hhape. SU5 described the boundaries of the suit land as; North- John Nada, South- Ng'ayda Hhape, East- water stream and West- Dughang'w Hhape. The above noted difference raises doubts on the

size and location of the suit land. In other words, neither of the parties was able to establish the clear size and location of the suit land. Thus, it was not safe to declare either of the party as lawful owner of the suit land which its size and boundaries or location are not clear. I therefore find that even though neither of the party applied for the visitation of the locus in quo, the circumstance of this case was an exceptional one in which the trial tribunal Page 8 of 10 ought to have moved itself to visit the locus in quo in order to resolve the real issue in dispute. The circumstances for visiting the locus in quo and procedures are well set in the case of Nizar M. H. Ladak v. Gulamali Fazal Janmohamed [1980] T.L.R 29 which was also cited by the Court of Appeal in the case of Prof. T. L. Malyamkono vs Wilhelm Sirivester Erio Civil Appeal No. 93 of 2021, TanzLii [2022] TZCA 39. The evidence of the Appellant in this case shows that his land is bordered with the Respondent's land and the Respondent moved the boundaries trespassing into his land. The Respondent on the other hand denied being a trespasser and claimed full ownership of the suit land mentioning other people as neighbors to his land excluding the Appellant. The size of the land mentioned by each part is quite different. Therefore, the circumstance in this case required observation by the trial tribunal

to verify the location or boundaries and size of the suit land before concluding that either of the party is the lawful owner of the same. In the final analysis, basing on the discussion above I find the appeal to have merits. The judgment passed by the trial tribunal is quashed and for interest of justice, the trial tribunal is directed to visit the locus in quo for purpose of resolving issue of location and size of the suit land and thereafter compose a new judgement. In considering that the matter is Page 9 of 10 remitted to the trial tribunal for compliance with this court's directives, I will not make an order as to costs. DATED at BABATI this 25th day of September, 2024. D. C. KAMUZORA VHTHEH/c^

JUDGE Page 10 of 10