Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 17198 OF 2024 (Originating From Application No. 75 of 2023, Temeke District Land and Housing Tribunal) WILFRED CHARLES KINGUMWILE (Administrator of the Estate of the Late Clara Kingumwile)........ ............................... APPELLANT VERSUS LONA ADUI MWINYIMKUU................................................................ RESPONDENT JUDGMENT 7th to 11th October, 2024 E.B. LUVANDA, J The Appellant above mentioned is aggrieved by the decision of the Tribunal, dismissing his claim for ownership of the suit premises described as TMK/MBG/KNY22/5 located at Mbagala Area within Temeke Municipality. In the amended application, the Appellant accused the Respondent for trespassing into the above suit premises by erecting a permanent structure thereon within the boundaries of the suit property. When he was testifying, the Appellant who testified as PW1 asserted that the Respondent trespassed an area measuring 47 by 37 feet. At the locus in quo, the Appellant asserted that his land is sized 61.5 by 61.5 feet. Meanwhile, PW1 tendered a residential licence exhibit P2 which depict his land measure 246 square meters. i On the other hand, the Respondent who testified as DW1 asserted that her land is sized 47 by 37 feet. In the Tribunal notes taken at the locus in quo, reflect that after embarking into actual measurement on the ground, the land of the Appellant was reading 64 by 64 by 67 feet, while the land of the Respondent was reading 35.3 by 46.4 feet. In that way, the Tribunal ruled that the suit land had never been part of the land of the late Clara Kingumwile which the Appellant is administering. Hence these aggrievements by the Appellant. In the memorandum of appeal, the Appellant grounded that: One, the learned Chairperson erred in law and fact by holding that the application has no merit; Two, the learned Chairperson erred in law and fact making decision without evaluating the evidence adduced by the Appellant; Three, the learned Chairperson erred in law and fact by holding that the said disputed property does not belong to the Appellant only relying on incorrect site visit report. The Appellant abandoned ground number one. Arguing ground number two, the Appellant submitted that the Tribunal failed to consider the evidence of the Appellant and disregarded the evidence submitted by not properly scrutinizing or evaluating the evidence which was submitted before it by the Appellant. He 2 submitted that during hearing, the Appellant submitted his evidence which were admitted and marked by the Tribunal, however the same were disregarded. For ground number three, the Appellant submitted that during site visit he accurately identified the entire disputed land as significant observations were made, however the Tribunal failed to properly consider the crucial evidence adduced by the Appellant. He invited this Court to give weight to site visit observation arguing it strongly support the Appellant claim of ownership. In reply, Ms. Amina Mohamed Mkungu learned Counsel for Respondent submitted that the learned Chairperson evaluated well the evidence of both parties on record and reached to just and fair decision to the effects that the Appellant failed to prove his claims to the required standard, citing section 112 of the Evidence Act, Cap 6 R.E. 2019, also Anthony M. Masanga vs Penina (Mama Mgesi) and Another, Civil Appeal No. 118 of 2024, for the proposition that who allege must prove. For ground number three, the learned Counsel submitted that the Appellant did not elaborate on the argument that the Tribunal relied on incorrect site visit report. She submitted that all the guidelines for visiting the locus in quo were met, as enunciated in Nizar M.H. vs Gulamal Fazal Jan Mohamed [1980] TLR 29. She submitted that the records taken at the site visit shows exactly what transpired during the visit, arguing it cannot be termed as incorrect report. 3 She submitted that the Appellant ought to give details of the said incorrect report. On my part, ground number two is lacking in merit. This because the Appellant was unable to tell which aspect of testimony was not considered or disregarded by the learned Chairperson when crafting the impugned judgment. The Appellant could not mention even the evidence alleged to have been admitted by the Tribunal upon being tendered by the Appellant. In fact, the Appellant's lamentation were couched on general complaints without hinting or directing to a specific issue. General complaints are taken as no arguments or submission having been made at all. At the Tribunal the Appellant made a very long narration, also tendered a letter of administration exhibit Pl; leseniya makazi exhibit P2, property tax demand along exchequer receipts forming a bundle in exhibit P3; hatiya kuuza nyumba along tax payer slip exhibit P4. The Appellant did not say which among the four admitted exhibits above were not subject for consideration by the Tribunal. In reflection, at page four second paragraph from the bottom onward, the learned Chairperson embarked into critical examination and analysis of evidence tendered and adduced by both parties, where considered along exhibits P2 and D3, which were relevant for determination of the matter. The Appellant did not tell which other facts or exhibits which were not subject for adumbration by the Tribunal, nor stated its relevance to the 4 issue in dispute, neither explained how he was prejudiced, or if considered how could had changed the position or the conclusion reached by the Tribunal. Therefore, this ground is unmerited. For ground number three, the record of the Tribunal reflects that notes and observation taken at the locus in quo, were read aloud before both parties along their respective Counsel on the same date of site visit. There was no any concern forthcoming from either side regarding correctness of those notes. Therefore, raising it at this stage, is a clear afterthought. The invitation by the Appellant for this Court to give weight to the alleged site observation which purportedly strongly support the Appellants claim of ownership, is a misplaced idea. This is because what was gathered at the site visit is what formed the basis of the Tribunal decision. And to my view, the Tribunal was on a correct perspective. As prefaced above, in the amended application the Appellant did not plead necessary facts depicting how and to what extent the alleged trespass was committed. The manner he pleaded, it suggested and give impression that the Respondent trespassed over the entire land comprised under the description of TMK/MBG/KNY22/5 located at Mbagala Area within Temeke Municipality. In testimony, it is when PW1 asserted that the trespassed land sized 47 by 37 feet. In other words, the Appellant was making a new case, departing from his own 5 pleadings. Be as it may, PW1 alleged his land in totality is sized61.5 by 61.5 feet, in exhibit P2 described a size of 246 square meters. The Tribunal converted the alleged 246 square meters as equal to 15.7 by 15.7 running meters. According to the Tribunal, the actual measurement of the land owned by the late Clara Kinguwile depicted to be 64 by 67 feet equal to 21 by 22 meters, being over and above the size depicted in exhibit P2 or the oral testimony by the Appellant. That is why I said the Tribunal was correct to dismiss the Appellants claim because it was preferred without sufficient material evidence and without any meritorious claim. Therefore, the decision of the Tribunal is upheld. 6