IN THE HIGH COURT OF TANZANIA

(MWANZA DISTRICT REGISTRY)

AT MWANZA
LAND APPEAL NO. 103 OF 2016

{Appeal from the judgment and decree of the District Land and Housing
Tribunal for Mwanza District at Mwanza in Land Application No. 172 of 2013
dated 27 of May, 2016.)

LUDOVICK MICHAEL MASAWE APPELLANT

VERSUS
SAMSON HERMAN ..... I I ••• ■■■■ •• ■■ ••••••• Ill ■ •• ■■ •••••• ■■■ •••••••• RESPONDENT

JUDGMENT

1 July, & 1 September, 2020

ISMAIL, J.

This is a judgment in respect of an appeal that arises from the

decision of the District Land and Housing Tribunal (DLHT) for Mwanza at

Mwanza. The DLHT dismissed the application preferred by the applicant,

vide Land Application No. 172 of 2013, and declared the respondent as

the lawful owner of the disputed piece of land standing on Plot No. 1373

Block 'HH', Nyakato in Mwanza City.

(

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 The DLHT's decision did not amuse the appellant. It has

precipitated the instant appeal which has four grounds of appeal which

are reproduced as follows:

1. That, the learned trial District Land and Housing Tribunal

Chairman erred in law and fact, for holding that the respondent
is the lawful owner of the suit plot of Land No. 1371 Block 'HH'
Nyakato Mwanza.
2. That, the learned trial District Land and Housing Tribunal
Chairman erred in law and fact, when he failed to take into
consideration the appellant's evidence that the appellant had
lawfully purchased the suit plot of land No. 1373 Block 'HH'
Nyakato area Mwanza City from Katundu Mtondo vide sale
agreement dated 7" October and Original letter of Occupancy
Ref. MZM/15397/2/AZR dated 1-10-1997.
3. That, the learned trial District Land and Housing Tribunal
Chairman erred in law and fact, for having failed to receive the
applicant's reply to the written statement of defence which could
have enabled the trial tribunal decide the case in favour of the
appellant
4. That, the learned trial District Land and Housing Tribunal
Chairman erred in law and fact, for having acted on the
respondent's forged title deed for Plot No. 1371 Block 'HH'
Nyakato Mwanza City.

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 Facts constituting the matter from which this appeal arose are not

complicated. They are to the effect that the applicant sued the respondent

for trespassing onto his piece of land while the appellant was away, taking

care of his ailing son. That was in 20012. He came back in September,

2013 and found a structure erected on the suit land. He learned that the

said structure had been erected by the respondent. Unable to hold it, the

appellant commenced proceedings in the District Land and Housing

Tribunal (DLHT) where his application took a hit when the DLHT dismissed

the application, and pronounced the respondent as the lawful owner of the

suit land. The DLHT came to a conclusion that the alleged encroachment

had not been proved. In consequence, the DLHT dismissed the application,

effectively confirming the respondents' ownership of the suit land.

At some point in the appeal proceedings, at the Court's own instance,

an order was made for the DLHT to call for fresh evidence on issues which

were not sufficiently canvassed. The order was given in realization of the

fact that vital evidence on the status of the suit plot and necessary in

unlocking the mystery that surrounds the ownership wrangle was missing.

Whereas the appellant maintains his ownership through a sale agreement

he allegedly entered into with Katundu Mtondo, the previous owner, and a

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certified copy of the letter of offer, the respondent has staked a claim of

the suit land by relying on the transfer that was effected in his favour and

receipts on property tax and land rent. The Court's order was complied

with on 2° March, 2020, on which date the testimony of Fredrick Dominic

Michael, a Land Officer, was recorded in the presence of the parties. The

testimony was to the effect that the suit land was initially surveyed and

designated as Plot No. 1373 Block 'HH' Nyakato. When the survey was

approved, the suit land was re-designated as Plot No. 273 Block "A"

Nyasaka. The witness testified that the suit plot was allocated to Katundu

Mtondo on 1 July, 1997, through a resolution of the Allocation Committee

that sat on 3° October, 1997. In 2008, Mr. Mtondo was issued with a letter

of offer, the same year he disposed of the suit plot to the respondent, and

that transfer of title was effected through Form Nos. 35, 29, 30, and the

sale agreement. It was contended that such disposition was registered in

the respondent's name on 9 March, 2009. The witness concluded by

testifying that the current position is that Plot No. 273 Block "A" Nyasaka

belongs to the respondent.

Hearing of the matter was conducted orally on 29° June, 2017, the

date on which the Court (Hon. Matupa, J) ordered that the matter be

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consigned back for taking an additional evidence. It is the same date that

the appellant introduced three more additional grounds of appeal which

were filed on 27° March, 2017. The appellant prayed that the Court should

adopt his grounds of appeal with nothing to submit on. Addressing the

Court in respect of the appeal, Mr. Deya Outa, learned counsel for the

respondent argued generally, that the DLHT evaluated the evidence and

came to a conclusion that the respondent's evidence was more credible

than that of the appellant. With respect to ownership of the suit land, the

learned counsel argued that since the dispute is on a surveyed land, the

respondent had a better title. He urged the Court to down playthe

appellant's contention that there was fraud because the appellant did not

register his transfer in time.

In rejoinder, the appellant contended that no letter of offer was

tendered by the respondent. He argued that he requested to carry out a

search at the Lands Registry but he was told that he should exhibit the

title. He submitted

that he was informed that Plot No. 1373 had not been allocated.

Before I embark on the disposal journey, it is worth of a note that

some of the issues raised in the supplementary grounds of appeal were

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addressed by the Court through an order which consigned the matter back

to DLHT for recording additional evidence. This was in respect of the

conduct of the proceedings in the presence of one assessor instead of two.

This is ground one of the supplementary grounds of appeal. Having done

that, I will combine the rest of the supplementary grounds with the

substantive grounds of appeal contained in the memorandum of appeal.

Deducing from the grounds of appeal and submissions made by the

parties, the pertinent question is whether the DLHT strayed into error

when it declared that the suit plot lawfully belongs to the respondent.

Let me begin my analysis with ground three of the appeal in which

the appellant is contends that he was denied an opportunity to file a reply

to the Written Statement of Defence which would contain facts that would

enable the DLHT to decide the matter in the appellant's favour. This

contention has not been rebutted to by the respondent. That did not deter

me from going through the proceedings of the DLHT which do not suggest

that such request was made by the appellant, at any point in the course of

the trial proceedings. This suggests that the appellant's contention in

respect of this ground is lacking in veracity. But even assuming, for the

sake of argument, that such right was denied by the DLHT, I do not see if

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such denial would occasion any injustice in the circumstances where the

appellant participated in the trial proceedings during which he tendered his

testimony in support of his case. This served as an opportunity for him to

tie all loose ends that he wanted to fix in respect of his case. In view

thereof, I find nothing worth of any favourable consideration in this ground

of appeal and I dismiss it.

With respect to ground four, the contention is that the DLHT acted

on a forged title deed. This allegation is as serious as it sounds strange.

Nothing has been adduced during trial to lend credence to the contention

that the respondent's documents were forged and the testimony adduced

by the Land Officer has vindicated the respondent and quashed the

appellant's contention. Noteworthy, as well, is the fact that this argument

did not feature in the appellant's testimony or that of the witness he called

to support his case. It is reckless to suggest, at this stage, that ownership

of the respondent has any criminal underhand in it. I hold that this ground

of appeal is also hollow and I dismiss it.

I will disposed of the rest of the grounds of appeal, including the

supplementary grounds, in a combined fashion. The contention here is

that the DLHT erred when it held that the suit land is a lawful property of
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the respondent. Let me begin by reiterating the known principle in the

conduct of proceedings which is to the effect that the person who alleges

existence of a certain fact bears the responsibility of proving the

allegation. This is consistent with the cardinal principle of evidence as

enshrined in sections 110 and 115 of the Evidence Act, Cap. 6 R.E. 2019.

The principle got a widened scope through commentaries and judicial

interpretations across jurisdictions. In commentaries by Sarkar on

Sarkar's Laws of Evidence, 18 Edn., M.C. Sarkar, S.C. Sarkar and

P.C. Sarkar, published by Lexis Nexis, (at p. 1896) the following passage

was given:

"... the burden of proving a fact rests on the party

who substantially asserts the affirmative of the issue
and not upon the party who denies it; for negative is
usually incapable of proof. It is ancient rule founded on
consideration of good sense and should not be departed
from without strong reason . ... Until such burden is
discharged the other party is not required to be called upon
to prove his case. The Court has to examine as to
whether the person upon whom the burden lies has
been able to discharge his burden. Until he arrives at
such a conclusion, he cannot proceed on the basis of
weakness of the other party. .." [Emphasis added].
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 While the appellant contended that he acquired the suit land from

Katundu Mtondo in 1998, and tendered an Offer of Right of Occupancy

(exhibit PE1), it is the respondent who demonstrated how he acquired the

said disputed land and the steps he took to regularize his ownership until

the eventual registration of the suit land in his name. This was done by

tendering assorted documents which were collectively admitted as exhibit

DEL This testimony is corroborated in all material respects by the

testimony of Fredrick Dominic Michael who testified on how title passed

from Katundu Mtondo to the respondent, and what it took to have that title

pass. In his capacity as a land officer, this witness was conversant with the

current status of the suit plot and his testimony was all in support of the

respondent's ownership.

This testimony beds well with the testimony of Birigither Joseph

Msangya who testified to the fact that Katundu's original Letter of Offer

was misplaced and a loss report was issued in respect thereof, after which

an original copy of Letter of Offer was issued in lieu of the misplaced one.

The copy was issued on 13° February, 2008, and this is the one which was

used to process transfer of ownership to the subsequent holder, the

respondent. The witness went ahead and tendered transfer documents

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which were admitted as Trb Exhibit 1. The appellant's case would stick if

he adduced an equally powerful testimony which would dislodge the

respondent's defence. This was not the case, and the DLHT had no choice

but to conform to the canon of justice accentuated in Hemed Said v.

Mohamed Mbilu [1984] TLR 113, to the effect that "the person whose

evidence is heavier than that of the other is the one who must

win. The DLHT was justified to hold that the respondent's testimony was

heavier and credible than that of the appellant, and that the scale tilted

heavily in the defendant's favour. I find nothing blemished in that respect.

There is also a legal requirement with respect to ownership of

registered land. This requirement is enshrined in section 36 of the Land

Act, Cap. 113 R.E. 2019, which is to the effect that any change of

ownership (disposition) subsequent to the first grant must be subjected to

requirements set out in the provisions of the law. It states as follow:

"A disposition of a right of occupancy shall: (a) comply with

the provisions of this section and sections 37, 38 , 39 and 40.
(b) be void if the provisions of this section and sections 37,
38, 39 and 40 are not complied with".

While the appellant has not exhibited compliance with any of these

provisions, it is the respondent who has dutifully conformed to these

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a

imperative requirements of the law. In of all this, I am not convinced, one

bit, that the DLHT would have upheld justice if its decision had leaned on

the appellant's side. I, therefore, find that the appellant's contention in

these grounds of appeal is barren of any fruits and I dismiss them.

Overall, I am persuaded by the respondents' arguments, and I hold

that circumstances of this case are such that the findings of the DLHT

should be left unscathed. Accordingly, I dismiss the appeal in its entirety

with costs.

It is so ordered.

DATED at MWANZA this 2° day of September, 2020.

JUDGE

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