waziri rajabu mwinjari vs shabani bakari nyegere 2011 tzhclandd 9 30 november 2011

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) A ( TANGA MISC. LAND CASE APPEAL NO. 3 OF 2010 (From the Decision of the District and Land Housing Tribunal of Tanga District at Tanga in Land case Appeal No. 118 of 2010 and Original Ward Tribunal of Vuga Bazo Ward in Application No.9 of 2009) W AZIR I RAJAB U M W I N J A R I ............................. AP P ELLANT VERSUS S H A B A N I BAKARI N Y E G E R E ........ ........... R ESP ON D EN T JUDGMENT Date of last order: 23/11/2011 Date of Judgm ent: 30/11/2011 Teemba J; The appellant was sued by the respondent at Vuga Bazo Ward Tribunal for recovery of a piece of land. The claim before the Ward Tribunal was that the appellant had trespassed on the respondent's land. The respondent and his witnesses testified before the trial Tribunal that: the appellant's father was a new -com er to the village and upon arrival the respondent's grandfather invited and gave him a farm. it is the respondent's case that the land given to the appellant/s father is different from the piece of land in dispute now. That:, the piece of land in disputed was in possession of respondent's family and was being cultivated at intervals when the respondent was % away. It is also on. record that the dispute arose in 2006 when the respondent found people cultivating the land and when asked to name the person who allowed them to use the farm, they named the appellant. • .On th e 'o th e r .hand, the appellant and. his defence witnesses V maintained that the* farm in dispute was form erly owned by his grandfather since 195fc It is also his defence that the land borders the farm of the respondent's grandfather and was inherited by the appellant's father. The appellant added that he started cultivating the farm after the death of his father but the respondent emerged and claimed the ownership. It is further contended by the appellant that the respondent does not know the boundaries between the farms. • • The trial Tribunal heard the evidence and visited the land in dispute. It was discovered that the alleged farm s of the partie's grandfathers are not bordering each other. The Ward Tribunal decided in favour of the respondent and declared him the rightful ow ner of the land in dispute. The appellant was not satisfied with the decision. He unsuccessfully appealed to the District Land and Housing Tribunal at Tanga. The appeal was dismissed with costs. He has now come to this court on a second appeal. The petition of appeal contains seven grounds of appeal which were fully adopted by the appellant. I will consider them one after another. His first ground of appeal is that the District Land and Housing Tribunal's chairman overlooked that there was no proper coram at the Ward Tribunal. The record shows that the Ward Tribunal was constituted by seven people - the chairman and secretary inclusive. The record further reveals that am ongst the members of the Tribunals, three were women as required by section 11 of the Land Disputes Courts Act, Mo.2 of 2002. Thus, this ground is baseless. The second ground of appeal is based on facts.. The appellant complained that the chairman erred in law and fact in ignoring tne fact that the appellant was born at the suit farm in 1954 and has also built his house besides his father's house. The record is clear on this point that the dispute is not over the appellant's farm. The suit farm is a different piece of land altogether. The Ward Tribunal visited the farms and they came out with this finding. As an appellate court, I have no reason to differ with the trial court on a finding unless it is found on a wrong basis. The appellant faults the Appellate Tribunal on the ground that it allowed the written evidence of Moham ed Hussein who did not testify before the Ward Tribunal. Having perused the record, I agree with the appellant that his complaint has merit. In principle, an evidence \ of any w itness is adduced before the trial court, cross examined and ' his/her credibility assessed in court. This piece of evidence is not recognized and it is hereby expunged from evidence. However, the remaining evidence is sufficient and it is against the appellant. The com plaint in ground number four that the chairman erred in law in considering the evidence of Omari Bakari who is the respondent's blood brother is also devoid of merit. The fact that a witness may be a blood relative of any party in a case, does not by it s , own disqualify the witness. The respondent's' brother is a competent witness and the court is supposed to examine his' credibility. In this case, his credibility was not questioned and there is no reason to raise it at this stage. This applies to the fifth ground where the evidence of Seleman Hussein is challenged. The sixth ground of appeai is that the chairman erred in not considering the evidence of independent witnesses, namely, Ramadhani Mgonda and Salehe Rashid. As already stated above, the Ward Tribunal heard the witnesses and visited the land in dispute. They finally made a finding which was confirmed by the first appellate 'court'. There are no good reason to fault their finding in respect of the boundaries and ownership of the land in dispute. The last ground of appeal is that the chairman erred in law by stating that the time of limitation was in favour of the respondent instead of the appellate. This ground is also devoid of merit because there is evidence on record that in the absence of the respondent, tfie farm was in possession of his family and his father's grandchildren w ere cultivating the farm. 4 W ithout much ado, I find the appeai devoid of merit and it is dismissed with costs. R.A. T E E M B A , J; 30/11/2011 ... ;. >•> 7~ .... - 'A C o u r t ; T o e ju d g m e n t is delivered in the presence of both parties. ; i 7 ■' i > ■I *) 0 . J i \ . / / R. A. TEEMBA, J; 30/11/2011