20161007 TZHC Mwanza

7·, l -'! l ·1 ·;_. : IN THE HIGH COURT OF TANZANIA AT MWANZA MISC LAND CASE APPEAL NO. 69 OF 2015 {From the Decision of the District Land and Housing Tribunal of Musoma District at Musoma. In Land Case Appeal No. 231 of 2013 and original Ward Tribunal of Sazira Ward in Application No. 06 of 20i.3J YUNZE LIM BE YUNZE ........ I •••••••••••••••••••••••••••••• APPELLANT VERSUS LUCIA WILLIAM SHIJA ............................. RESPONDENT JUDGMENT 19.07.2016 & 07.10.2016 L. M. MLACHA, J The parties to this appeal own adjacent pieces of land at Nyambililwa area, Msi_si village within Bunda District. The record show that they had been living peaceful in the past. They have now developed difficulties leading to sending each other to court. The appellant says that the suit land is 10 acres but the respondent calls it 8 acres. The parties could not be reconciled and the matter had to be referred to Sanzira ward tribunal for solution. · 1 , I The appellant Yunze Limbe Yunze, was the respondent at the Ward Tribunal. The respondent Lucia William Shija, was the applicant. It was alleged that the appellant had trespassed into the respondent's land,uprooted sisal plants and pulled out stories. The ward tribunal found for the respondent. The appellant was found to be a trespasser to the respondent's land. He was ordered to pay a fine of Tshs. 50,000/= or 3 months in jail in default. He appealed to the DLHT without success. He has now come to this court. The grounds upon which the present appeal is lodged can be put as follows: First, that the chairman erred in law for not directing he Ward Tribunal on how to rectify the errors made in Appeal No. 122/2006. Secondly, that the chairman did not analysis the evidence on record. Thirdly, that, the chairman erred in law for failing to admit evidence produced during appeal. Fourthly, ~hat the Chairman misdirected himself in law and fact by upholding the decision of the ward tribunal. The appeal was argued by oral submissions. The parties appeared in person. Submitting before this court, the appellant said that chairman of the DLHT neglected to receive exhibits which he produced during the appeal. 2 He thought that it was important to receive them.He submitted that he got his land during operation vijiji in 1974 and used it undisturbed up 2006 , . more than 30 years.He proceeded to say that, the village land committee came in 2006 to correct boundaries but instead, it cut his land and gave it to the respondent.That is his basic complain. It was the submission of the respondent that the village committee gave the land to them in 1975. They got the land (10 acres) which was formerly occupied by Mr. Mwanamgunya (who had vacated). She stayed there with her late husband peaceful up to 2002. Her husband died in 2002. She continued to live there up to 2006 when the respondent cut 8 acres out of it. He left her with only 2 acres. She said that she has a big family of six (6) children. Four of them are married and they all depend on the land. I will discuss the first grounds of· appeal separately. The other grounds will be discussed together. I will start with the first ground. Having examined the documents on record carefully, it has come to my knowledge that _there was an earlier case at the ward tribunal which involved the appellant and seven people. The appellant was the applicant. The respondent was one of the seven people. The ward tribunal dismissed 3 \ -_J the application. The appellant appealed to the DLHT. The DLHT observed a u technical problem and ordered retrial.The first ground of appeal seeks to examine the retrial order. I think that is a misconceived idea. If the DLHT made an error rn its decision in Land Appeal No. 122/2006, it was for the appellant to appeal against that decision. It is not for this appeal to correct that decision at this stage. He could not appeal; he should not be heard to ' l1 complain. Bringing issues of the former case in this. appeal is contrary to l the law and an abuse of the legal process. I cannot allow it. That disposes 1 the first ground. I will now move to examine the rest of the grounds of appeal. There is a complain which is based on the third ground of appeal that the chairman erred in not admitting exhibits during appeal. This again is a misconceived idea. Documents come to court in a civil case as annexures to the pleadings. They become exhibits after .being tendered formerly during the trial. It is the trial court which has the mandate to receive exhibits. Documents which were not tendered during the trial cannot be tendered during appeal. An appellate court is not allowed to receive. exhibits during submissions. The chairman of the DLHT was therefore justified in rejecting the documents.· 4 There is a second complain that the chairman of the DLHT made his decision without analyzing the evidence on record. Reading through the · judgment of the chairman of the DLHT, one may see that, truly t~at judgment did not analysis the evidence on record in depth. It was a judgment which was very short. But, the failure of an appellate court to analysis the evidence on record is not fatal, if it reached the correct decision. In this case the chairman never analyzed the evidence in depth, but in my view, he reached at the correct decision. The omission therefore did not cause any failure of justice. Finally, there is the complaint which is based on the fourth ground of appeal that, the chairman erred in upholding the decision of the ward tribunal. I don't know what this really means, but I think the appellant meant that, the decision of the ward tribunal was fatally wrong to the extent that the DLHT should not have upheld it. This calls for an in-depth examination of the record of the ward tribunal to see if the decision was properly reached. I will try to make that attempt. The respondent lodged a complaint at the ward tribunal in .the following words: 5 I .,) " ... na mlalamikia mdaiwa (Sul) kwa kuninyanyasa na kutaka kunyang'anya shamba langu nililoachiwa na marehemu mume wangu Williamu Shija. Shamba hili nililipata baada ya kupewa na serikali ya kijiji wakati wa kuhamia vijijini. Shamba hili lilikuwa linalimwa bi/a bughudha. Kufikia· mwaka 2006 mdaiwa alianza matatizo. /rEmphasis added) This evidence show that the respondent got the land during i operation vijiji and that she used it with her husband peacefully 2006 when l lI it was invaded by the appellant. Her husband died in 2002. The appellant's defence had the following words in part: "... eneo hilo niligawiwa na serikali ya kijiji mwaka 1974 wakati wa operation vijiji baada ya eneo /angu kuchukuliwa kama makazi ya kijiji... eneo langu lapata ekari 20 niligawanya katika makundi mawili (2). Ekari 10 niliweka katika kupanda miti mbalimbali aina ya mikaratusi, mihesawa, misonobari ..... eneo lingine la ekari 10 niliweka mazao mchanganyiko. ·Mpaka sasa naende/ea kulitumia..... nashangaa madai ya mama pamoja na wenzake saba (7) kudai kuwa mimi nimewavamia maeneo yao."(Emphasis added) The evidence from the respondent show that that his land has a total of 20 acres. He got it in 1974 during operation vijiji. He divided it to two parts. He has 10 acres which he uses for agricultural activities and 10 acres 6 \,;) which he used as reserve land. The reserve land is planted with trees of u various types and appears to be the disputed area. Looking at the nature of the respondent's case at the ward tribunal, one may note that she did not appear to complain about of a bushland. Her case is that the respondent has invaded the land which she had been using for all the years. It is an agricultural land as opposed to a bush land as the appellant had tried to put it. This fact is also reflected in her submission before me. She said. that she has a big family and that she doesn't have land for family use. The ward tribunal visited the suit premises and received additional evidence from the Kitongoji Chairman Mr. Mayala Mabirika and other old men namely; Maiga Chong'oro, Charles Kazi, Thomas Walwa and Yawanga Mabula. They gave the following evidence as recoded by the tribunal: "....... :.. Mdaiwa ni mtu wa matatizo, anamhangaisha huyu mdai bure, ni mbishi hashauriki. Wazee hao walitoa ushuhuda wao wote kuwa shamba hilo ni mali halali ya mdai kwani marehemu mumewe, William Shija aligawiwa na Serikali ya Kajiji 1975 ........ Baada ya mahojiano wajumbe na majirani walitembelea eneo na kujionea hali halisi kama ilivyo. Kama hivi: 7 r:_) 1. Mashariki mwa shamba iinapakana na John Ndalahwa alama za 0 mpaka ni mashina ya mpira/ na mashina mawili ndani ya shamba . j .' la mdai moja limekatwa tawi moja. ' i 2. Kusini shamba linapakana na Mtogwa mpaka unaokwenda mpaka kijito maheri magharibi. 3. Kaskazini shamba linapakana na Mussa Mtogwa kwa Juu na chini mdaiwa kuna mihogo na katani za mpaka zi!ionekana toka Juu hadi mtoni maheri - magharibi zimekwenda wima. 4. Katikati kwa Juu yamo ma/undo ya mawe yaliongo/ewa tayari kusafirishwa ndani ya eneo linalodaiwa na mdai naame!ima na kupanda mahindi. 5. Mwembe unaodaiwa na mdaiwa kukatwa umo ndani ya shamba la mdai kutokana na ushahidi wa majirani. 6. Mpaka unaoonekana ni ule unaowatenganisha mdai. Mussa Mtogwa wa mdaiwa ambae nao ni wa wadi Maheri. 7. Mdaiwa imeshuhudiwa na majirani kuwa ameingia kung'oa katani za mpaka kung'oa na kulundika mawe kulima na kupanda mazao ndani ya eneo la ndani. // (emphasis added) It is obvious that the evidence adduced by the appellant ·at the ward tribunal was weak compared to that of the respondent. The ward tribunal granted the· application. It had all the reason to do so. The chairman of the DLHT was justified in dismissing the appeal. 8 r I will in the upshot find that, the appeal is devoid of merits. The appellant is directed to stop harassing the respondent who' should continue to enjoy the suit premises undisturbed. It is ordered so. JUDGE 07.10.2016 Hon. L. M. Mlacha, Judge in present of both parties in person. Right of Appeal explained. JUDGE 9 l