20180905 TZHC Mbeya

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY OF MBEYA

AT MBEYA LAND APPEAL NO. 36 OF 2017 (From the Decision of the District Land and Housing Tribunal for Mbeya at Mbeya, Application No 146 of 2016) RICHARD OSIA MWANDEMELE ........................... APPELLANT

VERSUS LWITIKO OSIA MWANDEMELE ......................... RESPONDENT

JUDGMENT Date of last order: 0710612018 Date of Judgment: 0510912018 Dr. M. C. Levira, J The appellant, Richard Osia Mwandemele having been aggrieved by the decision of the District Land and Housing Tribunal for Mbeya has appealed to this court. The dispute at the trial tribunal was over a piece of land at plot No. 1030 Block "2" in Isyesye area, Mbeya. Both parties claim ownership over the said land. In the memorandum of appeal, the appellant preferred seven grounds of appeal as follows: Page 1 of8 '1.

1. That the Honourable chairman erred in law and fact to dismiss the application without considering, evaluating and analysing ( the fact that the respondent and his witness never impeached the appellant documents and title on ownership of the plot and the house situated in the disputed land to the standard required by law. That the honourable chairman erred in law and fact to dismiss the appellant Application basing on the doubtful, controversial and contradicting testimonies of the respondent and the respondent's key witness testified at the Tribunal. That the honourable chairman erred in law and fact by rejecting the sale agreement produced by the appellant on ground that the seller used different name while accepting the respondent's sale agreement which had similar situation without assigning reasons for rejecting the appellant witness testimony. That the honourable chairman erred in law and fact to impeach the appellant document of ownership without proof of fraudulent transaction as required by the law or any relevant authority. S. That the honourable chairman erred in law and fact by refusing to admit the certified official search from the office of Page 2 of 8 Commissioner for lands without sufficient ground hence reached a wrong decision. ( 6. That the honourable chairman erred in law and fact by allowing the testimony of fraudulent transaction without taking into account that the alleged Plot in dispute is registered and under the granted Title and the titles are issued by the Commissioner or authorized Officer and that they have never been called to testify or being joined as parties to the Application at the Tribunal.

7. That the honourable chairman erred in law by wrongly evaluating the evidence adduced before it hence reached wrong decision. At the hearing of this appeal both appellant and respondent were present in persons under legal representations of learned advocates Mr. Mwabukusi and Mr. Nimrod respectively. On his part in support of the appellant's grounds of appeal, Mr. Mwabukusi prayed to abandon ground three and started by arguing 1st and 7 th grounds altogether that there was no evidence to the extent required by the law. He stated that if there is complaint of forgery it is necessary for the kind of cheating to be Page 3 of8 CA mentioned specifically but, all the documents presented in court do not reveal the issue of cheating. He cited the case of Okelo ( Vs. Uganda National Examination Board [1986-1989] EA 436 - 438. He submitted that when someone plead fraud the standard of proof shift from the balance of probability to the standard of beyond reasonable doubt. He was of the view that the impeachment of ownership of the title has to be that the Certificate is not genuine and it was found in an improper way. According to him, the case he cited is in parimateria with Section 3(1) of the Land Registration Act Cap 334 R.E. 2002 which provides that, the owner of estate should hold free all estates and interest. He submitted further that, the appellant had a title but it was not in

his possession. He thus went to the Registrar of titles and obtained a search report which is a public document. The same establishes the owner but the chairman refused to receive it. He insisted, it was contrary to Section 5 of Cap 334 R.E. 2002 as the section requires the court to take judicial note of the signatures of the Registrar. Page 4 of 8 R0 1- In reply to ground one and seven, Mr. Nimrod submitted that the chairman did not error to dismiss the application. He insisted ( that it is strict that the procedures in our jurisdiction and the common law jurisdiction that, the onus of proof on the existence of any material fact or proposition which a party to suit wants the court to believe or rely on lies to the one who alleges to the existence of that particular fact. He added that in this present case, it was the appellant who filed a suit before the District Tribunal that the respondent trespassed in his property therefore the duty was on him to prove that the respondent trespassed into his property. He also had to prove ownership of that property in question. The learned counsel pointed out that the appellant admitted that the said property was bought by the respondent and helped him to build at page 6 - 7 of the proceedings but, later the respondent handed it to him. Mr. Nimrod highlighted that at the trial tribunal the appellant testified that he has a title deed and

thus, the Tribunal ordered him to bring the certificate of title as it is shown at page 5 and 6 of the proceedings. But the appellant did not bring the said certificate. The tribunal ordered him to bring a copy of it and the letter from the Bank to prove his assertion, but he did not bring Page 5 of8 4 Date: 05/09/2018 Coram: Hon. Dr. M. C. Levira, J ( Appellant: Present For the Appellant: Ms. Irene Mwakyusa/Mr. Mwabukusi - Advocates Respondent: Absent For the Respondent: Mr. Jackson Ngonyani/Mr. Nimrod - Advocates B/C: Mapunda Ms. Irene - Advocate: The matter is for judgment, we are ready. Court: Judgment delivered in the presence of Ms. Irene Mwakyusa learned advocate holding brief for Mr. Mwabukusi advocate for the appellant and Mr. Jackson Ngonyani learned advocate holding brief for Mr. Mafwele advocate for the respondent this 5th day of September, 2018. Right of Appeal Explained. Dr. M. C. Levira Judge 05/09/2018 Page8of8