ROMAN MSHABAA MARANDU VS MARY VANDELINE HAMARO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND APPEAL NO.14662 OF 2024 ROMAN MSHABAA MARANDU ………………………….. APPELLANT VERSUS MARY VANDELINE HAMARO …………………….…… RESPONDENT JUDGMENT 27/02/2025 & 28/03/2025 SIMFUKWE, J. Before the District Land and Housing Tribunal for Rombo at Rombo (hereinafter referred as "the Trial Tribunal"), the Respondent instituted a 1 land dispute against the Appellant. The Respondent alleged that the Appellant had unlawfully trespassed into her land by clearing a pathway leading to his homestead without her consent. The disputed land measures 97 feet in length and 5 feet in width, located at Hanyeri Hamlet, Mrao Village, Mrao-Keryo Ward within Rombo District in Kilimanjaro Region. The Respondent claimed that the disputed land belonged to her and her late husband, Vandeline Joseph Hamaro, since 1992, after it was granted to them by Joseph Kimatare. Following the demise of her husband in 1994, ownership of the land remained with her. However, in 2022, the Appellant, together with other people, allegedly unlawfully invaded the disputed land, cut down trees, destroyed crops and opened a pathway without her consent. Based on these allegations, the Respondent prayed the trial Tribunal to grant the following reliefs: i. A declaration that the Applicant is the lawful owner of the disputed land. ii. A permanent injunction restraining the Respondent, his agents, employees, representatives, or any other person acting in collaboration with or under the authority of the 2 Respondent from using the disputed land or interfering with the Applicant's free and peaceful enjoyment of the same in any manner. iii. An order for compensation against the Respondent, requiring him to pay the Applicant TZS 7,000,000 (Seven Million Tanzanian Shillings) as an estimate of the damages caused by the Respondent on the disputed land. iv. That the Respondent bears the costs of this application. v. Any other reliefs that the Tribunal deems just and appropriate to grant. Conversely, the Appellant herein, who was the Respondent during the trial, opposed the claims in his written statement of defence. He asserted that the disputed land, a road, had existed for a long period and that he had been aware of its existence since his birth. He further contended that the road was designated for maintenance by Mrao Village, where villagers regularly cleared bushes obstructing the pathway. In addition, the Appellant suggested that the respondent should have pursued legal action against those who interfered with her land. 3 In conclusion, the Appellant prayed for the Tribunal to dismiss the application with costs. Prior to the hearing, the Tribunal framed the following issues for determination: 1. Whether the Applicant is the lawful owner of the disputed land. 2. Whether the Respondent had the right to establish a pathway through the disputed land leading to his house. 3. Whether the Respondent damaged and took trees belonging to the Applicant. 4. What reliefs, if any, the parties are entitled to in this application? The Respondent had seven witnesses, while the Appellant had two witnesses. After conclusion of the hearing, the trial Tribunal ruled in favour of the Respondent herein, declaring her the lawful owner of the disputed land. Consequently, the trial Tribunal issued a permanent injunction restraining the appellant, his agents, employees, representatives, or any other person acting under his authority or in collaboration with him from utilizing the disputed land. 4 Aggrieved by the decision of the trial tribunal, the Appellant, who was unrepresented, filed the present appeal on the following grounds: 1. That, the trial tribunal erred in law and fact in entering judgement in favour of the Respondent and denied the Appellant the right to fair hearing by limiting the Appellant the number of witness (sic) to only one. 2. That, the trial tribunal erred in law and in fact by considering evidence of the Secretary of the Ward Tribunal who is tainted with conflict of Interest. 3. That, the trial tribunal erred in law and in fact by holding that the destruction of the trees and crops was done by the Appellant without considering that the (sic) was no evidence adduced by the Respondent. 4. That, the trial tribunal failed to elaborate anywhere in the judgement reasons for awarding the Respondent against the Appellant. 5. That, the trial tribunal failed to examine, assess and scrutinize the evidence adduced by the Appellant against the Respondent as the latter was tainted with irregularities, factual inaccuracy and error in the face of record. 5 The appellant prayed for the following orders: i) That the decision and award of the District Land and Housing Tribunal in Application No. 03 of 2022 be dismissed with costs; ii) That the appellant be awarded costs of this appeal; iii) Any other relief(s) this honourable court may deem fit and just to grant. The respondent who was also unrepresented replied the Petition of Appeal as follows: 1. That, ground No. 1 of the Petition of Appeal is vehemently disputed and the allegation that the appellant was denied the right to fair hearing by limiting the number of witnesses is unfounded; otherwise, the Appellant is put into strict proof thereof. 2. That, ground No. 2 of the Petition of Appeal is vehemently disputed and the allegation that the trial court considered the evidence of the Ward Tribunal Secretary while the records are clear, needs proof. 3. That, ground No. 3 of the Petition of Appeal is disputed as to the fact that, it is undisputed fact that there was a 6 destruction of the trees and crops. Otherwise, proof is needed. 4. That, Ground No. 4 of the Petition of Appeal is disputed as the trial court evaluated the evidence properly and the decision reached thereat was correct. 5. That, ground No. 5 of the Petition of Appeal is vehemently disputed and the Respondent avers that the trial court was correct in its findings, otherwise the Appellant is put into strict proof thereof. At the hearing, the Appellant and the Respondent adopted the Petition of Appeal and the Reply thereto, respectively, and did not have anything to submit. After a thorough examination of the grounds of appeal, the reply thereto, and the records of the lower tribunal, the issue for determination is whether the raised grounds of appeal have merit. In the case of David Joseph Mahende vs Afriscan Group (T) Ltd (Civil Appeal No. 200 of 2016) [2025] TZCA 25 (18 February 2025), at page 6 and 7 the Court reminded that: 7 “The standard of proof in a civil suit, is on the balance of probabilities, meaning that the court must determine which evidence is more credible. In the case of Mary Agnes Mpelumbe (In her capacity as Administratrix of the Estates of the late Isaya Simon Mpelumbe) v. Shekha Nasser Hamad, (Civil Appeal No. 136 of 2021) TZCA 667 (5th November 2021), the Court explained that the burden of proof rests on the party who makes the allegation, as stipulated in section 110 of the Evidence Act, Cap. 6 R.E. 2019. It went on to state that the standard of proof in civil cases requires evidence that outweighs the opposing party's evidence on the balance of probabilities. The Court emphasized that the burden of proof does not shift to the opposing party unless the party with the burden fails to meet it.” Emphasis added In the case at hand, starting with the first ground of appeal, the appellant complained that he was curtailed the right to a fair hearing by limiting him to only one witness. This argument was denied by the respondent. I have gone through the proceedings of the trial tribunal, with due respect, on 20/11/2023, the appellant closed his case, as he was quoted to have said: “Nimefunga kutoa Ushahidi wangu.” 8 Thereafter, the Chairman marked the defence case closed. As a matter of law and practice, the court or tribunal cannot compel a party to call a certain number of witnesses to prove a fact unless, it is in the interest of justice to do so. See section 143 of the Evidence Act, Cap 6 R.E 2022. Thus, the contention that the appellant was curtailed the right to a fair trial by limiting the number of his witnesses, is without merit. Therefore, I dismiss the first ground of appeal for lack of merit. On the second ground of appeal, the appellant contended that the trial Tribunal considered the evidence of the Secretary of the Ward Tribunal despite the alleged conflict of interest. The same was disputed by the respondent. I have considered evidence of SM6, who was previously the Executive Officer of Mrao-Keryo Ward. With due respect, SM6’s testimony was limited to what he knew about the dispute and he had no interest in the disputed land. SM6 stated that the appellant went to his office seeking a pathway to his homestead. He advised him to request the respondent herein for the same. Thereafter, the appellant went to the District Commissioner to complain and started clearing the way without permission from the respondent herein. Moreover, the Ward Tribunal did not determine the matter on merit. Therefore, this ground of appeal is devoid merit. 9 On the third and fifth grounds of appeal the appellant faults the trial tribunal for its failure to evaluate adduced evidence properly. Being the first appellate court, I have carefully gone through evidence of both parties on record. This being a civil case and guided by the cited authority herein above, the test is whose evidence was heavier compared to the other? At paragraph 11 of his written statement of defence, the appellant stated that the disputed road connects different areas of Mrao village. He stated further that on May, June, July and August 2022, villagers were clearing all bushes that were blocking the disputed road. In his testimony before the tribunal, the appellant stated inter alia that he had requested for a path, it was widened and marked, three feet wide. He alleged that the path was being used by many people on their way to the church, hospital and market. When cross examined, the appellant averred that the disputed road connects three people. However, the appellant did not call any of the villagers who are either connected with the said road or who participated to clear the bushes. His evidence was supported by SU2 only (Athumani Mohamed Kimario), a councillor of Mrao-Keryo Ward. SU2 testified inter alia that the District Commissioner went to their ward after the appellant had complained that he had no pathway. That, it was alleged before the District Commissioner that the said way was there 10 from the beginning. The District Commissioner ordered the pathway to be cleared. People cleaned it while being supervised by the hamlet chairperson. At the same time, SU2 said that the complainant did not want the road to pass there because it was her farm, which sounds ambiguous. As usual, the said hamlet chairperson was not called to testify. On her side, the respondent was supported by her neighbours (SM1 and SM4), her co-wife (SM3), the village executive officer (SM5), the ward executive officer (SM6) and the agricultural officer (SM7). It was the testimony of SM5 that the appellant had complained about the pathway. SM5 stated that he advised the appellant to request the neighbours so that they could give him land which could be cleared as a path to his homestead. The appellant did not heed to the advice of SM5. SM6’s testimony corroborated what was said by SM5. The fact that the trees and crops were destroyed, was confirmed by PW7 who visited the locus in quo. On balance of probability, I am convinced that the respondent herein proved her claim before the trial tribunal as required by the law. Hence, the third and fifth grounds of appeal are devoid of merit. 11 In respect of the fourth ground of appeal which faults the judgment of the trial tribunal for lack of reasoning; my scrutiny of the impugned judgment of the trial tribunal reveals that at page 10 and 11 of the said judgment, the learned Chairperson thoroughly gave reasons for his decision. He stated among other things that: “Nimeupitia Ushahidi wa pande zote mbili hapo juu na kufikia uamuzi kwamba, mmiliki halali wa ardhi yenye mgogoro ni Mleta maombi (SM1). Pia hakuna Ushahidi unaotosha kuthibitisha kwamba, ardhi yenye mgogoro ni njia ambayo ilikuwepo tangu zamani. Kama ardhi yenye mgogoro ilikuwa ni njia ya muda mrefu, ingekuwa inapitika tangu zamani. Kitendo cha miti, mikahawa, maharage, migomba kukatwa na uzio kuondolewa ili kupitisha njia ni uthibitisho tosha kwamba, ardhi yenye mgogoro ilikuwa ni mali halali ya Mleta maombi (SM1) ……. Kutokana na uchambuzi wa ushahidi huo hapo juu, ni wazi kwamba, ushahidi wa upande wa Mleta maombi ni mzito kulinganisha na ushahidi wa upande wa Mjibu maombi;” Concerning the awarded amount as compensation, I am of the opinion that the same is reasonable and fair. 12 In the upshot, the appeal fails for lack of merit. I dismissed it with no order as to costs on the reason that the parties are relatives as correctly decided by the trial tribunal. It is so ordered. Dated and delivered at Moshi this 28th day of March 2025. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 28/03/2025 13