LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB-REGISTRY) AT ARUSHA LAND APPEAL NO. 48 OF 2023 (Originating from Application No. 150 of 2020 in the District Land and Housing Tribunal for Arusha & Misc. Land Application No. 165 of 2022) AHMAD ABDILLAH RAJABU........................................ APPELLANT VERSUS REHEMA ALI MOLLEL............................................. RESPONDENT JUDGMENT 09/5/2024 & 20/6/2024 KIWONDE, J.: The appellant, Ahmad Abdillah Rajabu was aggrieved by the decision of the trial tribunal and has appealed to this court on seven (7) grounds of appeal to wit: 1. That the honourable chairman erred in law and fact by holding that there was no agreement between the appellant and the 1st respondent on building the house on Plot No. 418 Block 'X' Area 'F' despite the presented evidence of the appellant's loan payment made after the principal debtor defaulted. Page 1 of 9 1 2. That the honourable chairman erred in law and fact by not considering the fact that loan repayment by the appellant amounted to mutual agreement. 3. That the honourable chairman erred in law and fact by holding that the appellant deserves not to be co-owner or compensated the house on Plot No. 418 Block'X'Area 'F' while by virtue of him being a surety he had an interest in the suit property. 4. That the honourable chairman and trial tribunal erred in law and in fact by not properly evaluating the evidence before it and erred in ignoring and not considering the appellant's presented evidence. 5. That the trial chairman erred in law and fact by relying on the weak evidence presented by the respondent. 6. That the trial chairman erred in law and in fact by not reading the application to the respondents and thus foregoing the rules of procedure. 7. That the trial tribunal erred in law and in fact by not reading the opinions of the assessors or rather reading them in the absence of the assessors and thus not adhering to the rules of procedures. Page 2 of 9 The appellant prayed the appeal be allowed and the judgment of the trial tribunal be quashed and the decree be set aside. The brief facts giving rise to this appeal are that the appellant unsuccessfully sued the respondent at the District Land and Housing Tribunal for Arusha claiming to be declared a co-owner of Plot No. 418 Block 'X' Area 'F', Levolosi, Arusha City and that he had equal rights with the respondent. It was the contention by the appellant that he became the co-owner after helping the respondent who is her biological mother to pay her house loan at Tanzania Housing Bank from 1983 to 1991 and added another TZS 2,000,000/= to complete the house in dispute. On the other hand, the respondent opposed the application saying she never agreed with the appellant to make him a co-owner of the disputed land and the certificate of occupancy bears a single name of the respondent. At the conclusion of the trial, the trial tribunal held inter alia that the appellant failed to prove his claims on the balance of probabilities and dismissed the application with cost. Both parties are represented, where Mr. Gabriel F. Rwahira, learned counsel represented the appellant and Mr. Zuberi M. Ngawa, advocate Page 3 of 9 stood for the respondent. On 26th March 2024 it was consensually agreed and ordered by the court that the appeal be argued by way of filing written submissions and they filed them. I appreciate their efforts to research and cite case laws for reference. I now turn to discuss them. For the purposes of putting the records clear, the counsel for the appellant abandoned or dropped down the 5th and 6th grounds of appeal. Upon going through the pleadings, tribunal records and the written submissions, the major issue for determination is whether the appeal finds merits or otherwise. In my deliberations, I begin with the 1st, 2nd' and 3rd grounds of appeal since they are argued together. In supporting these grounds, Mr. Rwahira submitted that at the trial tribunal, the appellant prayed to be declared the co-owner of the disputed land and that he had equal rights with the respondent or be compensated half of the value of the property. He said that the appellant had no issue with the ownership but the whole development on the suit land as a guarantor. He had an implied promise to be a co-owner as per section 97 of the Law of Contract Act, Cap 145 (R.E 2019) until 2020 when the appellant was warned by one Swalehe Elbusaidy not to interfere with the suit property. Page 4 of 9 When opposing the appeal, Mr. Ngawa contended that at the trial tribunal, the appellant did not submit any proof that the respondent agreed with him to join him as a co-owner of her property. The appellant also failed to prove that he bought the disputed land on behalf of the respondent and took a loan to build the house. It was his further submission that the respondent submitted exhibits DI, D2, and D3 which proved the process of requesting and allocating the disputed land. As to the alleged developments to the disputed land, Mr. Ngawa replied that the appellant did not submit any proof at the trial tribunal. It is a trite law that he who alleges must prove as stipulated under sections 110 (1) and 111 of the Law of Evidence Act, Cap 6 (R.E 2022). In civil cases, the standard of proof is at the balance of probability. This was a position in the case of Charles Richard Kombe t/a Building versus Evarani Mtungi & others, Civil Appeal 38 of 2012 [2017] TZCA 153 (8th March 2017) Tanzlii in which the Court held that: " We need not cite any provision oflaw because this being a civil matter, the claimant has to prove his claims and it is elementary that the standard of proof is always on the Page 5 of 9 balance ofprobabilities and not beyond reasonable doubt'. (Emphasis is mine). In our present case, the said duty was on the appellant to prove that he is a co-owner with the respondent on the disputed land. The burden of proof does not shift to the respondent. When he was testifying at the trial tribunal, the appellant alleged that he was the one who bought the disputed land so that he could build the house for her mother, and he used his salary. Afterward, he took a loan from Tanzania House of Loan as his mother could not do so. The appellant tendered exhibits Pl collectively, a letter from his company to THB Bank to clear his loan and a letter to his office from the bank regarding his loan deduction after the respondent. He also failed to repay her loan and a redemption statement from the Bank. He also tendered exhibit P2 (resignation letter). However, when he was cross-examined, he admitted that he had no proof of buying the disputed land and he had no evidence that the respondent joined him as a co-owner in the disputed land and that a certificate of occupancy bears the name of the respondent. Whereas, there is sufficient evidence on record to prove that the disputed land was the sole property of the respondent. In defence, the respondent tendered Exhibits Dland D2 applications to be allocated a plot, and Exhibit Page 6 of 9 D3, a letter from the Municipal Council on how to pay tax and other payments after being allocated the plot. From this evidence, it is clear that the appellant failed to prove his claim at the trial tribunal. The appellant did not have any documents that supported his allegation of buying the disputed plot on behalf of his mother (the respondent) or that he was paying the loan on behalf of the respondent. He was just lamenting with no exhibits to support his claim. Therefore, I concur with the counsel for the respondent that the appellant failed to prove his claim at the balance of probabilities as it was decided by the trial tribunal. These grounds of appeal lack merits and they are dismissed. The 7th ground of appeal need not detain me much. Mr. Rwahira lamented that the honourable tribunal Chairman read the opinion of assessors in their absence contrary to Regulation 19 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, GN No. 174 of 2003 which prejudiced the appellant as it was not clear who opined what., According to him, it should be regarded that the Chairman decided the case without the aid of the assessors. But Mr. Ngawa said that on 10/6/2022 when the defence case was closed it was ordered the assessors would give their opinion on 21/6/2022 and the same was complied with Page 7 of 9 on that date. However, on 21/6/2022 the appellant's counsel was late, and he did not see the assessors reading their opinion. The tribunal the records reveal that on 21/06/2022 the opinions of assessors were read aloud before the court in the presence of the appellant. The fact that they were read aloud in his presence and no concern was raised regarding those opinions, the same cannot be raised at this stage. As long as they were read aloud, they were part of the records and they were considered in the trial tribunal's judgment, then this court support the argument of Mr. Ngawa that Regulation 19 (2) of GN 173 of 2003 was not violated. This ground of appeal crumbles too. This answers the 4th ground of appeal which was to the effect that the trial tribunal chairman failed to evaluate and analyse evidence on records. It is worth noting that this being the first appellate court, it is entitled to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny. This was stated in the case of Philipo Joseph Lukonde versus Faraji Ally Saidi, Civil Appeal No. 74 of 2019) [2020] TZCA 1779 (21st September 2020) (Tanzlii). I read the entire evidence of the trial tribunal and subjected it to re-evaluation and anlysis. Page 8 of 9 It is the view of this court that the same was properly evaluated and analysed as the appellant had no sufficient evidence to prove his claims. The ground of appeal is devoid of merits and it is dismissed. In the event, this appeal lacks merit and it is hereby dismissed with cost. It is so ordered. F.H. KIWONDE JUDGE 20/06/2024 Page 9 of 9