zamda matuga vs patresia joseph lilundila 2020 tzhclandd 2209 11 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 193 OF 2019 (Arising from in Kiiombero/Uianga District Land and Hoyusing Tribunal Land Appeal No. 276 of 2017. Originated from Idete Ward Tribunal Land Case No. 31 of 2017) ZAMDA MATUGA.............................................. .2^....... APPELLANT VERSUS PATRESIA JOSEPH LI LUN DI LA.......... RESPONDENT Date of last Order: 04/06/2020^^ Date ofJudgment: 11/09/202^ MANGO, J. The Appellant being aggrieved by the decision of the District Land Housing Tribunal for Kilombero Ulanga in Land Appeal No. 276 of 2017 preferred this appeal in the fallowing grounds:- ■ A /. That, the appeUate Tribunal erred in Law and fact for deciding in favour of the respondent by contradicting itself that the appellant too had purchased the land from one Paulo Rwoga. ii. That, the appellate Tribunal erred in law and fact by deciding on favour of the respondent without considering that the decision of the ward Tribunal did not bear the records of all i evidence adduced and matters formally transpired during the proceedings. Hi. That, the appellate Tribunal erred in law and fact by deciding in favour of the Respondent without considering that the appellants acquired the land through clearing the bush since The appellant prosecuted this appeal in person while the respondent had services of Mr. Pius Ngosi learned ad vocatelfcn^18th T4arch 2020 by consent of both parties, this court ordered the a^e^^^gjiisposed by way of written submissions, the orde^whicIlWas duly complied with by the parties. Submitting in support of thebrstground of appeal the appellant argued that she did not purch Suitland by clearing^ the bushlsometimes 2009. And that her land acquisition was blessed by tfe Miwangani 'A' Village Council and she has been paying property tax as required by Section 29 (c) of the Village Land Act, [Cap 114 R.E 2019]. That she alleged to have tendered as evidence of such occupation;? property tax receipt inrespect of the Suitland before the trial tribunal. On the second ground of appeal she argued that the decision of the appellate tribunal upheld the decision of the ward Tribunal wrongly. According to her, the decision of the Ward Tribunal did not consider the letter signed and stamped by the village council showing that the appellant had owned the Suitland since 2009. The argued further that although the 2 respondent allege to have purchased the Suitland from Paulo, she had not tendered the sale, agreement to substantiate her claims. Submitting on the third ground of Appeal, she argued that, she was the first to own the Suitland as she acquired the same in the year 2009 while the respondent allege to have purchased the same in the year 2013. Thus she has a better title then the Respondent. In his reply counsel for the Respondent, Mr? Pius Ngosi argued that the Respondent proved ownership of the^ suitland by producing/ a sale agreement between her and one Paulo kuoga ’^(JJsneSalso brought witnesses who testified in her favou The learned Counsel submitted at. the Appellant failed to prove how she acquired the suitland and the evidence adduced by the Appellant and her witnesses, failed to prove the Appellants ownership over the suitiand- Mr. Ngosi argued that therAppellant took 4 years to initiate her claims against the Respondent over the'suitland from 2013 when the Respondent purchased the land to 2017 when the Appellant initiated proceedings to recover^the suitland. According to him, the failure of the Appellant to initiate these proceedings at the time the Respondent bought the land suggests, that the Appellant did not do anything in the suitland for four years thus, her claims of ownership are doubtful. In her rejoinder the Appellant reiterated her submission in chief. I have considered submission made by the parties to this Case and Court record. 3 The record also shows that the Appellant failed to prove her case in the required standards. Although she alleged to have produced a letter from the village authority and the land rent receipt inrespect of the suit land, the alleged documents are not in record. The alleged documents do not even feature in the testimony of the appellant before the tribunal. The appellants' witnesses testified to the effect that They witnessed the appellant clearing the bush in the disputed land. There is no evidence from the village authority establishing that the appellant was allocated the disputed land or recognized to be the owner of the suitjand. According to the record of the tribunal, the appellant failed even to show demarcations of her land to the members of the tribunal when they visited locus in quo. In such circumstances the trial and the Appellate tribunal decision are correct and they Have been reached after a though evaluation of evidence li produced. The records shows the Respondent has produced documentary evidence in the process of proving ownership of the suit land. She produced a sale agreement that shows she purchased the suitland from one Paulo Luoga. The said agreement is in the court record. It is trite law that he who allege must prove, the duty which the appellant failed to fulfill. X • Thus, the first ground of appeal is hereby dismissed. As to the second ground of appeal, the applicant did not mention what is actually missing in court record. My thorough perusal to court record shows the testimonies of both parties were recorded and the available documentary evidence tally with the testimonies of the parties. In that regard this ground of appeal is also dismissed for being unmeritorious. 4 water. The third ground of appeal should not detain this court as the record shows the tribunals considered evidence from both parties fairly. The claim by the appellant that she acquired the plot by clearing the bush in the year 2009 was considered against the respondent's evidence that she bought the disputed land from one Paulo Rwoga. Paulo Rwoga testified before the tribunal that he purchased the suit land in the year 2003 from one Mahangila and he started clearing the same from>xthat year. The village authority. respondent's Although witnesses the appellant testified effect to to the seems have that cleared the therefyvas land in a-dispute the year 2009, regarding the personofwho the boundaries the sold th^ndi^^^reisppndent suit plot aridthe owned ► resoh/dd by and the cultivated the same from the-yeaf 2003l erefore allegations that the Therefore, the Appeal is hereby dismissed for being unmeritious. Given the nature of this appea1| I award no costs. Each party should bear its own costs Right W Appeal Explained JUDGE 11/09/2020 5 COURT: Judgment delivered in my chamber today 11th day of September, 2020 in the presence of Appellant and Respondent both appearing in person. 6