sarah ndunguru and another vs gisbert mbungu 2023 tzhc 18230 13 june 2023

IN THE HIGH COURT OF TANZANIA (SONGEA DISTRICT REGISTRY)

ATSONGEA LAND CASE APPEAL NO. 1 OF 2023 (Originated from Land Application No. 19 of 2018, Mbinga District Land and Housing Tribunal) SARAH NDUNGURU............................................ ..................1st APPELLANT FRANK NDUNGURU............................................................... 2nd APPELLANT

VERSUS GISBERT MBUNGU ....... RESPONDENT

JUDGMENT 17/05/2023 & 13/06/2023 E, B. LUVANDA, J. This is a first appeal. The Appellant above named is aggrieved by the judgment of the trial tribunal declaring the Respondent above as a lawful owner of a farm of two acres located at Kihuru Suburb, Mbuji Ward, Mbinga District. In the petition of appeal, the Appellant grounded that: 1. That the honourable trial tribunal grossly erred in law and fact to decide the matter in favor of the Applicant (herein Respondent) while the said Applicant failed to tender sale agreement between SM4 and himself and also he failed to bring any of persons who witnessed the said sale of a disputed land.

2. That the trial tribunal grossly erred in law and fact to decide the matter in favor of the Applicant (herein Respondent) based on weak and contradictory evidences tendered by the Applicant (herein Respondent) before the trial tribunal.

3. That the trial tribunal grossly erred in law and fact to decide the matter in favor of the Applicant (herein Respondent) while the said Applicant failed to state on how the Appellants (Respondents by then) had trespassed the disputed land.

4. That the honorable trial tribunal crossly erred in law and fact to adjudicate and decide the matter in favor of Applicant (herein Respondent) while the Applicant and his witnesses failed to identify the boundaries of a disputed land.

5. That the trial tribunal grossly erred in law and fact to enter judgment in favor of the Applicant (herein Respondent) without taking in account that the Appellants have been in actual possession of the suit premises for more than 20 years peacefully and openly and the Applicant did not dispute this fact.

6. That the trial tribunal grossly erred in law and fact to enter judgment and orders in favor of the Applicant (herein Respondent) 2 while the said Applicant in his pleadings said the disputed land comprises coffee crops and residential house, but during the hearing the Applicant said nothing about the house. But the Appellants during the hearing stated that they have been living in the said house from the year 2000 to date and the trial tribunal made no order concerning the house. The appeal was a argued by way of written submission where the Appellants Counsel Mr. Gaudence B. Ndom'ba Advocate complied with a schedule and the Respondent opted not to file a reply to the Appellants submission. In the written submission, the learned Counsel for Appellants submitted that during hearing of the suit at the trial tribunal, the Respondent (Applicant at the trial) failed to tender a sale agreement of a disputed land between the Respondent and PW4, despite a fact that it was mentioned in the pleadings as annexture. That the Respondent did not bring any person who witnessed the alleged sale agreement, which is contrary to section 64(1) (1) of the Land Act, Cap 113 R.E.

2019. Regarding the second ground, the learned Counsel submitted that from the proceedings and judgment, had the following contradiction on the prosecution (sic, plaintiff) case: the Respondent said he purchased land 3 from Belgina Ndunguru (PW4) in 2015 for a price of TZs. 5,000,000/- while the later said she sold it to the Respondent for TZs. .1,000,000/-=; The Respondent said the agreement was witnessed by the Ward Executive Officer, while PW4 said it was done before the ten cell leader; The Respondent said he purchased a disputed land comprising of a house, coffee farm, two garden, while PW4 said it was a bare land. The learned Counsel submitted that on the other hand the evidence of the Appellant was very consistence. For the third ground, the leaned Counsel submitted that the Respondent failed to explain as to how and on which terms the Appellants trespassed the land. Regarding the fourth ground, the learned Counsel submitted that the Respondents witnesses failed to describe and identify properly boundaries of a disputed land, while the first Appellant described the boundaries of a disputed land which connote that possibly parties meant two different pieces of land. Arguing for the fifth ground of appeal, the learned Counsel submitted that the Appellant's witness testified that she purchased the disputed land in 2000 and the same was official handed over to her in 2007, before the Mbuji Village Chairman, one Fabian Ndunguru who testified 4 as DW3. That the Appellants have been living in the house built there since 2000 to date, which fact was no challenged. He submitted that the matter before the trial tribunal was time bared/ citing rule (sic, item) 22 to the Schedule of the Law of Limitation Act, Cap 89 R.E.

2019. For the ground number six, the learned Counsel submitted that the Appellants made clear that they have been living on a disputed land since 2000, but the Respondent did not explain if he purchased the land in vacant possession and if there was a house on it. In additional, the learned Counsel submitted that the second Appellant whom the case was heard exparte was not summoned during delivery of a judgment. He cited Order XX rule 1 of the Civil Procedure Code, Cap. 33 R.E. 2019; Cosmas Construction Co. Ltd vs Arrow Garments Ltd, [1992] TLR 127. But this fact of non summoning during delivery of exparte judgment, was not pleaded in the grounds of appeal, as such I will not entertain it and is accordingly ignored. As I have indicated at the very outset, that this is a first appeal. Therefore I am enjoined to embark on re-evaluating evidence adduced or tendered at the trial tribunal and may entail total departure oh findings and conclusion arrived by the trial tribunal on matters of facts. 5 As it transpired in the judgment of the trial tribunal in particular from pages 7 to 8, the learned trial Chairman faulted the evidence of the Appellant that it was marred with loopholes (alleged failed to summon one Herman Kipengele, to whom the First Appellant alleged to had redeemed family (impugned) land); contradictions between what was pleaded in the joint written statement of

defence of the Appellants indicating the redemption was done in 2007 as per annexture DI, which nevertheless was not tendered in evidence. The alleged annexure DI alleged was at variance with oral defence to the effect that redemption was in 2000. Surprisingly the learned trial Chairman fell short of and acted blind, in that did not appreciate a fact that even the evidence presented by the Respondent (Plaintiff at the trial), was entangled with similar a normal ies and discrepancies. For one thing, the Respondent in his pleading (application) he attached a copy of a sale agreement annexure 'A', but was not tendered in evidence during trial. Instead, the Respondent summoned the vendor one Belgina Ndunguru, who testified as PW4. PW4 who is at advanced age by virtue of being 98 years, introduced a lot of contradictory story ws-5-wsthe tell tale by the Respondent (PW1). For one thing PW1 said he purchased the impugned land from PW4 but 6 PW4 could not even tell or recite the exact year when she disposed it. This is becausez PW4 when she was testifying on 28/4/2020; said according to her recollection she disposed it about two years agoz while from 2015 (cited by PW1) to 2020; elapsed five years. PW4 said the farm she sold to PW1 is located at Gwambo Kihuri, but PW1 who is alleged to be a grandson of PW4, could not even describe the location of a farm. PW1 said he purchased the

impugned land for a consideration of TZs. 5,000;000/=; while PW4 mentioned a price of TZs. 1,000,000/= as the only sum of money paid or handed over to her for a sale of a farm. PW1 said a transaction of sale was executed before the Ward Executive Officer of Mbuji, but PW4 said it was done before the ten cell leader, but still neither of the two were summoned. PW1 said he purchased a house, land farm comprising of two garden, coffee farm and other two lands for cultivation, while PW4 said it was empty and bare land, covered with grass or foliage. In view of above and glaring discrepancies on the face of it, it cannot be said that the Respondent (Plaintiff) at the trial tribunal had proved his case on the balance. It is the rule that who allege must prove. Herein the Respondent is the one who initiated proceedings and sued the 7 Appellants for trespassing his land, alleged purchased in 2015 from PW4, but the Respondent failed miserably to defend that title. I therefore overturn the verdict of the trial Tribunal as the Respondent failed to prove his claim. The appeal is allowed. I make no order for costs, for reasons made by the trial tribunal that litigants are sibling, which is valid. 8