Professional Documents
Culture Documents
{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.)
JUDGMENT
ISMAIL, J.
decision of the District Land and Housing Tribunal (DLHT) for Mwanza at
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
1
The DLHT's decision did not amuse the appellant. It has
precipitated the instant appeal which has four grounds of appeal which
2
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
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,
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.
he allegedly entered into with Katundu Mtondo, the previous owner, and a
l
3
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
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
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
testifying that the current position is that Plot No. 273 Block "A" Nyasaka
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
L
4
consigned back for taking an additional evidence. It is the same date that
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
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
appellant's contention that there was fraud because the appellant did not
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.
that, I will combine the rest of the supplementary grounds with the
parties, the pertinent question is whether the DLHT strayed into error
when it declared that the suit plot lawfully belongs to the respondent.
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
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
6
such denial would occasion any injustice in the circumstances where the
tie all loose ends that he wanted to fix in respect of his case. In view
With respect to ground four, the contention is that the DLHT acted
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
did not feature in the appellant's testimony or that of the witness he called
of the respondent has any criminal underhand in it. I hold that this ground
that the DLHT erred when it held that the suit land is a lawful property of
c
7
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
enshrined in sections 110 and 115 of the Evidence Act, Cap. 6 R.E. 2019.
P.C. Sarkar, published by Lexis Nexis, (at p. 1896) the following passage
was given:
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
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.
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
9
which were admitted as Trb Exhibit 1. The appellant's case would stick if
respondent's defence. This was not the case, and the DLHT had no choice
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
Act, Cap. 113 R.E. 2019, which is to the effect that any change of
While the appellant has not exhibited compliance with any of these
10
a
bit, that the DLHT would have upheld justice if its decision had leaned on
that circumstances of this case are such that the findings of the DLHT
with costs.
It is so ordered.
JUDGE
11