AKWELINA HHANDO edited 2222222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 8770 OF 2024 (Originating from Land Application No.34 of 2023 in District Land and Housing Tribunal of Mbulu at Dongobesh) AKWELINA HHANDO.......................................... APPELLANT VERSUS PETRO BAYNIT........................................................ RESPONDENT JUDGMENT 26th June & 2(fh August, 2024 Kahyoza, J.: Akwelina Hhando (the appellant) sued Petro Baynit (the respondent) before the district land and housing tribunal (the tribunal) for trespassing into her land. Petro Baynit refuted the claims and prayed to be declared the lawful owner of the suit land. The tribunal dismissed Akwelina Hhando's claims for lack of merit. Aggrieved, appealed contending that the tribunal failed to properly evaluate the evidence, that the decision was bad in law for the tribunal's failure to make the finding of facts, and that decision was bad in law as procedural irregularities marred it. i Brief background that is that; Akwelina Hhando claimed that she possessed the disputed land since 1964 during earth quick when her brother gave her the disputed land. Petro Baynit, (the respondent) alleged that he owns the disputed land as it was his father's land. He added that his father occupied the land before independence and that he acquired it from his brother Kwaray Yambo. The appellant summoned Gidabu Hangu (Pw2), who told the trial Tribunal that he bought the disputed land from Dehaye Basso (the appellant's brother). Gidabu Hangu (Pw2), bought five acres of land at the time he was married only to the appellant. Later, Gidabu Hangu (Pw2), married a second wife and gave the land to the appellant. He contended that the respondent trespassed onto two acres of the land he left with the appellant. The respondent's account was that the suit land was the family land. It belonged to his father Nade Yambo. Nade Yambo acquired the land from his bother Kwaray Yambo. He deposed that the boundaries of the disputed land were on the North-Nade Yambo, South- Gidhabu Hangu, East- Barabara and West- Korongo. He summoned three witnesses, Isack Qamunga (84) (Dw2), Batholomayo Thomas (64) (Dw3) and Dohho Awe (60) (Dw3), who 2 testified that the disputed land belongs to respondent and that it was a family land since it belonged to respondent's father. They added that the respondent's father acquired it from Qwaray Yambo, his brother. Aggrieved by the decision of the Tribunal, the appellant opted to lodge an appeal with this Court raising three grounds of appeal, which raised three issues as follows- 1. did the Tribunal failure to properly evaluate and consider the appellant's evidence? 2. did the appellant prove her case? 3. Is the decision of the tribunal marred by procedural irregularities? During the hearing of the appeal, Mr. Paschal, the learned advocate appeared for the appellant while the respondent enjoyed the service of Mr. Kilobwa, the learned advocate. They argued the appeal orally. Mr. Paschal abandoned the third ground of appeal and jointly argued the first and second grounds of appeal. He argued that the trial tribunal did not consider the appellant evidence as to when she obtained the suit land and how long she had occupied it before the dispute. He contended that the appellant obtained the disputed land in 1964 from her brother and the conflict ensued in 2023. The appellant's former husband, Gidabu Hangu 3 (Pw2), testified that he bought the disputed land from the appellant's brother and left it to his wife the appellant after he married a second wife. Mr. Kilobwa, the learned advocate, opposed the appeal and argued that the tribunal considered the evidence and found that the appellant's evidence contradicted with her witness. The appellant disposed that she obtained the land from his brother after he moved away and the appellant's witness deposed that he bought the suit land from the appellant's brother and gave it to the appellant. Also, the appellant's evidence contradicted the pleadings as she stated that she acquired land by clearing the virgin land while she testified that she acquired the land from her brother, Dehayo Basso. He concluded that the appellant failed to prove her claims. Did the trial tribunal fail to properly evaluate and consider the evidence adduced? The appellant complained that the tribunal did not properly evaluate and consider her evidence. I had an opportunity to review the evidence on record, to say the list I do not find that the complaint justified. The tribunal did consider and evaluate the evidence and found that it was not worthwhile. 4 I have no reason to fault the tribunal's finding. The appellant's evidence varied with the pleadings. She stated in the pleadings that she acquired the dispute land by tilling a virgin land with her husband in 1964. She pleaded , thus- "Eneo hilo ni mali ya mleta maombi ambaye ameanza kulimiliki eneo hiIo tangu miaka ya tetemeko la nchi mwaka 1964 baada ya kufyeka eneo la pori na kuanzisha makazi yao pamoja na mume wake." The appellant testified that she obtain the disputed land from her brother in 1964 after he moved away and left gave her the land. "Eneo ni mali yangu na nimeanza kumiliki tangu miaka ya 1964 kipindi cha tetemeko la ardhi na nilipata baada ya kaka yangu kuha ma kisha kuniachia mimi..." The appellant summoned one witness her husband who deposed that he acquired the disputed land by purchase and he purchased it from the appellant's brother. The appellant's husband and the appellant used the disputed land as husband and wife until when he married another woman and resolved to give the disputed to the appellant. It is obvious that the appellant's evidence contradicted her pleading. It is settled "that parties are not allowed to depart from their pleadings by raising new claim which is not founded in pleadings or in consisted to what 5 is pleaded."See the decision of the Court of Appeal in Yara Tanzania Ltd v. Ikuwio General Enterprises Civil Appeal No 309 of 2019. The court is required to ignore the evidence of party which contradicts the pleadings. This position was stated in Barclays Bank (T) v. Jacob Muro, Civil Appeal No.357 of 2019, where the Court of Appeal observed that- ”H/e feel compelled, at this point, to restate the time-honored principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at the variance with the pleaded facts must be ignored." In the present case, the appellant's evidence that she obtained the suit land from her brother or her witness' evidence that he bought the suit land from the appellant's brother and gave the land to the appellant is meritless as it contradicts the pleading. The appellant's pleading was that she acquired the suit land by the virgin land. After, the appellant's evidence and her witness' evidence is ignored, the appellant retains no evidence to prove her claim. Consequently, I cannot escape to conclude, as the tribunal did and as hereby conclude, that the appellant failed to prove her case. I find that the first ground of complaint, that the tribunal did not properly evaluate the evidence without merit. I also find no merit in the 6 second complaint that tribunal erred for its failure to conclude that the appellant did not establish her claim on the balance of probability. The evidence on record, depicts that the appellant failed to adduce evidence to support her claims in the application. She had no justification to complain to this Court. In the end, I find that the appeal meritless and dismiss it. I make no order as to costs given the nature of the parties. I uphold the tribunal decision, that the appellant did not prove that she is a lawful owner of the suit land. I order accordingly. Dated at Babati this 20th day of August, 2024 John R. Kahyoza Judge Court: Judgment delivered in the presence of the parties. B/C. Ms. Fatina (RMA) present. a John R. Kahyoza, J. 20. 8.2024 7