20120822 TZHC Mbeya1

IN THE FIIGH COURT OF TANZANIA AT MBEYA. LAND APPEAL NUMBER 20 OF'2011 (Original Land Application Number 38 of 2009 of the District Land and Housing Tribunal of Mbeya) RAPHAEL MBARAFU --------------------APPELLANT

VERSUS MWANAWALA VILLAGE COUNCIL 1 RESPONDENT ALFRED MBUGANO -------------------------- 2' RESPONDENT

JUDGMENT 20/06 &. 22/08/2012 S. S. MWANGESI J.: The appellant herein was the applicant at the District Land and Housing Tribunal for Mbeya where he was claiming for a plot of land situated at Mnazi area in Mwanawala Village within the District of Mbarali, measuring about 18 1/2 acres that was alleged to have been illegally disposed from him by the respondents. The Honorable Chairman of the 'District Land and Housing Tribunal being assisted by the gentle assessors after having heard the evidence from bQth sides, were of the unanimous view that, the claims by the appellant had not been sufficiently established and that, the disputed plot of land had been legally allocated to the second respondent who was therefore lawfully occupying the same. His claims were thus dismissed with costs. The decision of the District Land and Housing Tribunal did aggrieve the appellant who has decided to challenge it in this Court. Through the services of Mr. Tasco Luambano Learned Counsel, the appellant has listed about five grounds of appeal. It has been argued in the first ground of appeal that, the Honorable Chairman of the District Land and Housing Tribunal did err in law and on fact in holding that, the second respondent is the lawful owner of the disputed plot of land despite the weight of the evidence that was tendered at the same to establish otherwise. The District I..and and Housing

Tribunal has as well been challenged in the second ground of appeal that, it did fail to analyze properly the evidence that was placed before it by the appellant. The third ground has been to the effect that, the Honorable' Chairman of the trial Tribunal did misdirect himself and failed to consider properly the reply by Mwanawala Village Council to the effect that, the disputed plot of land had been allocated by the Village Council to the appellant. It has been averred that, it was unfair to decide that the disputed plot of land did belong to the respondent without putting into consideration the fact that., the same had not been allocated by the proper Village committee and furthermore, it did not advance reasons as to why it did determine the matter in favor of the respondent. The appeal has been argued by way of written submissions at the instance of the Learned Counsel for the parties that is, Mr. Tasco Luambano for the appellant and Mr. Mushokorwa for the respondent. 2 The submission of Mr. Luambano insupport of the appeal has combined the first and second grounds of appeal. It has been his submission that, the District Land and Housing Tribunal did fail in its decision to observe the provisions of 'law and in particular section 24 (3) of the Village Land Act Cap 114, as the evidence that was tendered before the trial Tribunal did sufficiently establish that, the disputed

plot of land was legally allocated to the appellant prior to any other person'else.. That being the case, the allocation that is alleged to have been made later to the respondent, was null and void and the District Land and Housing Tribunal ought to have held so. To substantiate this contention, this Court has been referred to the decision in the case of.Amani Rajabu Njuma Versus Thomas Amri [1990] TLR 58 where the Court held that; "The Village Government may allocate land to anyone. But that does not mean that the Village Council has power to take away land from one person and give to another." With regard to the third ground of appeal, , 'it has been the submission of the Learned Counsel for the appellant that, the HonOrable Chairman of the District Land and Housing Tribunal did ignore the pleadings that had been set forth by the first respondent in his written statement of defense, where he made it clear that, the disputed plot of land was allocated to the appellant. Since the same was the proper authoiity vested with the powers to manage the Village..land and allocate it to any person after complying with the procedure in view of the provisions of section 8 (1) of the Village Land Act, then such averment of the first respondent ought to have been the posit jon to be taken by the trial Tribunal. 3 On the bases of the foregoing submission, the Learned Counsel for the

appellant has urged this Court to hold that, the Honorable Chairman of the District Land and Housing Tribunal did misdirect himself to arrive at the findings which he made that is, of denying the appellant the right of ownership to the disputed plot of land. And as a result, he has requested the said decision to be quashed and set aside and that the respondents have to be condemned to bear the costs of this appeal. The written submission by Mr. Mushokorwa Learned Counsel for the respondents in rebuttal to what has been submitted by his Learned Brother has been that, much as the records and exhibits tendered at the trial Tribunal reveal, it would appear that, both the appellant and the respondent were allocated their plots of land legally that is, 95 acres for the second respond.ent and 181/2 acres for the appellant. According to him, the issue is as to whether the 18 1/2 acres allocated to the appellant falls within the 95 acres allocated to the second respondent. When the Tribunal visited the locus in quo, the Learned COunsel went on to submit, the appellant did fail to show the 18 1/2 acres which he had been allocated, by the Village authority,, of which part of it had been encroached by the respondent and as a resuit, such situation prompted with the disclosure contained in a letter dated the 15tE April 2009, the District Land and Housing Tribunal did dismiss the claims

of the appellant for want of sufficient proof. It has been the view of the Learned Counsel .for the respondents that, the decision of the District Land and Housing Tribunal did not dispossess the . appellant the plot of land which ,.he . had been legally allocated by the concerned Village authority. The problem did arise from the.failure to identify properly and accurately the location where the said plot did lie And that, it was from such confusion that is why the District 4 . Land and Housing Tribunal did direct that, the allocating Committee to gO and identify the 181/2 acres which it had allocated to the appellant. In the light of the foregoing, it has been: the opinion of Mr. Mushokorwa that, the argument by his Learned Brother that, his 'client was allocated the plot of land earlier than the second respondent is inconsequential in that, there was no complaint frorp'the Village Council on late payment on the 05th November 2001 after allocation on the 15th July 2001. And further that, the allocation letters to both the appellant and the second respondent are not in any prescribed forms. Under the circumstances, the allegations that payments were made earlier cannot be used as a determinant factor in resolving as, to who should be considered the lawful owner of the disputed plot of land To that end, this Court has been asked to find this appeal without any founded grounds

and that it has to be dismissed with costs. From the 'foregoing contention of the Learned Counsel, the issue for this Court to determine is,as to whether the appeal at hand is tenable. As hinted by the Learned Counsel for the appellant and substantiated by the record in the proceeding, the allocation of the plots of land under dispute was made by the Village Land Counbil under ëustornary pocedure. Under this procedure, undoubtedly, ' preciseness and specification cannot be guaranteed. As it could 'be 'noticed from the records of the trial Tribunal, the sketch plan of the visited, locus 'in quo, measurementS were made with the use of paces and therefore depending on the size of the person making the measurement at that particular time. And on the location of the area did depend on the people with whom they shared the border as well 'as the memory and/or memories of those present at the. particular time of allocation bcaus.e there are no permanent marks like becons and/ or the like. •. •, ..' ::, , , It was in the light of the above situation that, no doubt in this particular case according to the records of the trial Tribunal, it proved a bit difficult for the appellant to locate his 18 1/2 acres which he had been allocated by the Village authority. And, on the same bases, even the Village authority was not certain as to the exact location, not to mention the exact plOts of land

which it had allocated to the. appellant as well as to the second respondent. With the few remarks above, I now turn to consider the weight of the evidence that was tendered at the trial Tribunal during the hearing of the dispute which has been complained of by the appellant through his Learned Counsel in the first and second grounds of appeal that, it was never properly analyzed by the Honorable Chairman of the District Land and Housing Tribunal. The claims by the appellant in the original dispute, was to the effect that, the second respondent had encroached his two and half (2 1/2) acres of land, and that, the encroachment was alleged 1:0 have been made in the year 2009. To establish his claims, the appellant relied on theallocation letter by the Village Land Council of Mwanawala that was written to him on the 08 September 2001. On the other hand, there:Was also another allocation letter written by the same Village Land Council to the second respondent on the 15th1 July 2001. These two letters did.create a tugof war between the two, each of them claiming to have been allocated the plot of land earlier than the other. However, from the testimonies of PW2 Hosee Sasiñe who had been the Chainnan of the Village of Mwanawala between the years 2000 and 2004, and that Of DW3 Julius Japhet Ponda who had been the Village Executive. Officer of Mwanawala Village between the years 1996

and 2003, my inclination is that both the two that is, the appellant and the second respondent were iávftilly allocated the plots of land which they claim for, and therefore, the question of time is not a basic issue in determining the dispute between them. The dispute has arisen from the problems of identifying the exact boundaries as earlier highlighted above. It':'is however my view that, the dispute between the two was not a complicated one because of a number of factors. Firstly, the Village authority did admit to have been the cause for the confusion and that, it was prepared 'to make reparation to either with • a new. plot of land. Secondly, there was evidence to the effect that, the. appellant had 'never made any development to the plot of land that had been allocated to him up to the year 2009 when he discovered that it had been encroached on by the second respondent. On the other hand, the second respondent had already effeótëd some development on part of his land that included the portion claimed by the appellant to have been his While this Court is at variance with the 'holding of the District Land and Housing Tribunal to the effect that, the allocation of the plot of land to the appellant by the Village Land Council was null and void, takiig all things equal as it appears to have been the position, in the matter at hand, prudence demands that, between the two the

one who had to be spared, in the disturbance if any, was the one who had already effected Some; development on his plot of land. As 'such, it is in agreement with the directive that was given by the Honorable Chairman of the District Land and Housing Tribunal that,' the Village Land Council had to ensure that, it' allocates the appellant 'with a plot of land with similar measures to the one that had allocated'to:him before. Such directive is again restated by this Court that, the Village Land Council of Mwanawala has to allocate the appellant a plot of land with the same size as the one that had been allocated to him in 2001. 7 That sid, it is held that, the appeal by the appellant is devoid of merit and has to fail. It is accordingly dismissed. Hoyeer, so far as the cause of the confusion was occasioned by neither the appellant nor the second respOndent, I make no orders as to costs and therefore, each party will bear its own costS. Order accordingly. • •.: • • JUDGE 22-08-2012