Mogeta Mwita Chacha vs Kyora Mwita Kehongo (Civil Appeal No. 000025534 of 2025) [2026] TZHC 2839 (1 June 2026)

IN THE HIGH COURT OF TANZANIA MUSOMA SUB REGISTRY (PC) CIVIL APPEAL NO. 000025534 of 2025 REFERENCE NUMBER 202510041000025534 (Arising from Civil Appeal No. 000018474 O F2025 o f District Court o f Serengcti Originating from Ngoreme Primary Court in Civil Cese No. 22 o f2025) MOGETA MWITA C H A C H A ............................................................ APPELLANT VERSUS KYORA MWITA K EH O N G O ...................................................... RESPONDENT JUDGMENT 07:n May & 01st June, 2026 M. L. KOMBA, J.: This is the second appeal. It arises from the decision of the District Court of Serengeti sitting at Mugumu which set aside the decision of Ngoreme Primary Court in Civil Case No. 22 of 2025 (the trial court) where the Appellant was claiming from respondent compensation for destruction done on trees. She claimed for specific damage, compensation and cost of the court. One day respondent and another person who had electric hack saw entered into the farm where there were trees and started to cut trees, the action was witnessed by SMI who is appellant in this appeal and SM2. Appellant knowing those trees belonged to her, she asked respondent why was cutting trees but the reply was negative. Appellant reported to village Executive Officer, the latter ordered respondent to Page 1 of 8

show up for discussion but he denied. Appellant was ordered to make valuation of the destruction which was done by SM3 and the valuation report admitted as exhibit P3. Basing on witnesses paraded together with exhibits, trial Magistrate found the claim by appellant was genuine and granted. He ordered appellant to be paid costs of the trees destroyed (TZS 60,000/) and valuation costs which was TZS 495,999/=. Respondent was dissatisfied and appealed to the 1st appellate court with 8 grounds faulting the trial court on failure to properly evaluate evidence. The 1s t appellate Magistrate reversed the decision of the trial court, he set aside judgment and ordered retrial before another Magistrate with instruction that Iseresere Village Council to be involved as a third party, the issue of ownership of land has to be determined and evidence to be properly analysed. This time it is appellant who was not satisfied by order of the l s : appellate court and appealed to this court with the following grounds;

1. That the 1st appellate court orders in particular, orders (ii) (a) and (ii)(b) cannot be determined before the trail court.
2. That, the appellate court being the first appellate court failed to exercise properly judicial powers vested on it, to evaluate the evidence tendered by parties before the trial court
3. That the 1st appellate court erred in law and facts when was re evaluating the evidence on record as such arrived in a wrong decision; copy o fjudgement is attached forthwith.

Mr. Gervas filed PO, however when the matter was fixed for hearing, he prayed to withdraw the PO and allow matter to proceed. In this appeal, the appellant was represented by Mr. Amos Wilson whilst the respondent was represented by Mr. Emmanuel Gervas, both learned advocates. Mr. Amos for appellant submitted that appellant was not dissatisfied by decision of the first appellate court. Starting with the l sl ground he submitted that during trial there was only two parties, village council was not made a party because appellant has nothing to claim from village authority and the claim was not on ownership of land but trees which was destroyed. He insisted it was clear civil claim and not ownership of land as the 1s t Appellate court ordered the issue of ownership has to be determined. It was his submission that the trial court has no jurisdiction to determine the issue of ownership on land and therefore the order made by the 1st appellant court is an executable. However, the claim by appellant was destruction of trees not ownership of land. The counsel combined the second and third ground about analysis of evidence by the 1st appellate court. He submitted that during trial, the claim and testimony was about action of respondent to cut trees which were property of the appellant. He insisted that appellant did not claim ownership of land that's why, he said the 1st appellate court misdirected itself in analysis of the evidence and order more evidence on ownership Page 3 of 8

of land. He prayed this court to reverse the 1s t appellate court decision and restore the trial court judgment. He also prayed for costs. Mr. Gervas started his submission by reminding mandate of the District Court which includes powers to make revision of primary court decision as provided under section 21 of Cap 11 R.E 2002. He went on submitting that the 1s t appellate court noted the respondent was allowed by the village council to utilize the land as testified by respondent during trial and the testimony was corroborated by village chairman who informed the trial court that he allowed respondent to cut trees. He supports the order of the l sl appellate court that leaders from Iseresere village were supposed to be party of the case because it was not for the respondent alone to pay the costs of the case. To cement the importance, counsel prayed this court to note that even the trial court noted importance of joining other parties as seen at page 4 of judgment. Counsel insisted it was right for the court to order determination of the ownership of land but not in a form of re hearing the case but to collect evidence because respondent mentioned village council. The second ground counsel submitted that evidence was Clearly evaluated by the 1s t appellate court because appellant claim to own the land and respondent admitted to cut trees and therefore the issue of ownership of land is inevitable. It was counsel reasoning that because villaqe chairman admitted he allow respondent to cut trees, then village

leaders are owners of the land and were supposed to be joined in the suit. He prayed the court find the appeal is of less merit and dismissed with costs. During rejoinder counsel Amos insisted that the orders cannot be executed because the primary court lacks jurisdiction to determine ownership on land and that was not the claim by the appellant. Upon submissions by both parties, I am called upon to decide if the appeal has merit. On the first place it has to be known that this is the second appeal as submitted by counsel for appellant that appellant was aggrieved by decision of Serengeti District court on appeal. I shall combine all grounds of appeal in determining if the appeal has merit and if orders by the 1s t appellate court can be executed. The 1s t appellate court established that village council were supposed to be joined in a suit and the trial court has to determine issue of ownership of land. 1s t appellate Magistrate arrived to that conclusion after having analysed evidence adduced during trial and find village chairman testified that respondent cut different trees which were not pointed by the leaders and therefore he supported the claim by the appellant. From record, there is no doubt that respondent cut trees and is not disputed that village chairman allowed respondent to cut trees. What is not clear Page 5 of 8

in the 1s t appellate court decision if trees which were destroyed was owned by the appellant. In form No. 1 which was used to institute the claim, appellant complained of trees as his property, the claim was not in ownership of land. Testimony of SM3 was clear that three trees were destroyed. It was confirmed that Respondent cut trees beyond what was authorized, that is enough to prove the claim by appellant because during trial, appellant claimed for compensation for destruction and special damage. The trial court analysed evidence and managed to show that respondent cut trees beyond what was authorized and the Village chairman evidence was considered. What initiate claim at the primary court is Claim Form Number 1 as originated in Magistrate Courts (Approval forms for Primary Courts) Rules, 2020 GN No. 943. In his claim, appellant did claim to own land and testimony of SU3 (Chairman) is clear that respondent cut different trees. What about the order, the 1s t appellate court ordered the trial court to join village council in a suit and to determines ownership of land. Though orders were not directly connected to claims made by the appellant, that, being the court's observation, I am therefore persuaded by the learned counsel for the appellant, Mr. Amos, the trail court has no

jurisdiction to determine ownership of land leave alone that appellant did not claim to own land but compensation for destroyed trees. Village Executive Officer and Chairman of Iseresere village were summonsed as witnesses and testified as SU2 and SU3 respectively, both were credible witness and their testimony worth to be considered as leaders. If the order that village council has be joined as party to suit, what additional evidence would be gathered apart from what has been testified that respondent cut trees beyond the demarcation shown village leaders as at page 9 of Proceedings and Page 3 of trial court judgment. Machage Mwisim in his testimony did not testifywhether the village has a right on the trees or the land. The village leaders testified in court and they were not claiming for any village right. Therefore the village is not a necessary party and non-joinder does not make the suit to be defeated. See the case of Gerald Godfrey Lutalo vs CRDB Bank PLC & Others (Civil Appeal No. 431 of 2024) [2026] TZCA 11. From my analysis, the combined ground of appeal has merit and I allow. The decision of the 1s t appellate court is hereby set aside and restore the decision of the trial court. Appeal allowed with costs. DATED in MUSOMA this 01st June, 2026