LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA LAND APPEAL NO. 78 OF 2023 ( C/f Land Application No 258 o f 2017 at the District Land and Housing Tribunal o f Arusha at Arusha) ALLY JU M B E .................................................................APPELLANT Versus STANLEY YONA M AKALLA..................................... RESPONDENT JUDGMENT 19th June & 26th July 2024 Masara, .1 At the District Land and Housing Tribunal for Arusha at Arusha ("the trial tribunal"), the Appellant herein sued the Respondent herein praying for an order of eviction and vacant possession of the leased premises, payment of accrued rent as well as costs of the suit. After full hearing, the trial tribunal dismissed the Appellants application with costs. Dissatisfied by the said decision, the Appellant has appealed to this Court armed with six grounds as hereunder reproduced: 1) That, the Honourable chairman erred in law and in fact by deciding that the appellant had failed to prove his ownership over the disputed property while there is sufficient evidence on record for his ownership. 2) That, the Honourable chairman erred in law and in fact by failing to call the Arusha City Council as a Tribunal witness whiie the said i j * .1 council was a key witness to both parties and the appellant had served the said council several witness summons but she failed to appear and testify before the tribunal. 3) That, the Honourable chairman erred in law and in fact by relying on section 100 o f the Evidence Act, Revised Edition 2019 to determine the Appellant's ownership o f the disputed property while there is sufficient evidence from DW1 which had corroborated the evidence o f the Appellant that there is tenancy and landlord relationship between them. 4) That, the Honourable chairman erred in law and in fact by deciding that the appellant has no rent arrears against the respondent while there is no evidence presented by the respondentproving that when he handed over the disputed property to the appellant and at what time he had discovered that the actual owner is Arusha City Council and legal steps taken by him against the appellant. 5) That, the trial tribunal erred in law and in fact by failing to determine the relevance o f exhibit PI and P2 tendered in evidence determining that the respondent and the said Nagunwa Mkumbo Makalla are one and the same person. 6) That, the trial tribunal erred in law and fact by deciding that the appellant had failed to prove his ownership over the disputed property while the respondent had failed to join the Arusha city Council as a third party to determine his ownership over the disputed property. 2 |P J t? At the hearing, Ms Fatuma Amiri, learned advocate, appeared for the Appellant, while Mr Duncan Oola, iearned advocate, appeared for the Respondent. Hearing proceeded by way of written submissions. On the first ground of appeal, Ms Fatuma submitted that the Appellant had adduced sufficient evidence to prove that he was the owner of the leased property. She made specific reference to the evidence of the Appellant (PW1) before the trial tribunal, where he stated that he was allocated the land by Arusha City Council to build a residential commercial house. That, the Appellant made efforts to tender the building permit in vain, as Arusha City Council were in possession of the original documents. Further, that the Appellant intended to procure the evidence of the Director of Arusha City Council, but despite several witness summons sent to Arusha City Council, no witness from the City Council appeared to adduce evidence. It was therefore the position of the Appellant that the actions by the City Council implied and confirmed that the property in question was lawfully owned by the Appellant. That, even the Respondent, in his testimony, tendered exhibit D1 confirming that the Appellant is the owner of the disputed property. In the learned advocate's firm view, the Appellant sufficiently proved his ownership over the leased property. That, had the trial tribunal taken into consideration all evidence and circumstances, it would not have concluded as it did. On the second ground of appeal, Ms Fatuma submitted that the trial Tribunal refusal on 16th May 2022 to call the Director of Arusha City Council as a tribunal witness prejudiced the Appellant's case, bearing in mind that the Appellant evidenced to have been allocated the suit land with Arusha City Council and the Respondent, in his amended written statement of defence, pleaded that Arusha City Council is the owner of the suit property. That, such evidence was sufficient to make the tribunal realise that the Director was a material witness to the dispute. To buttress her submission, reference was made to the case of Omary Abdallah Kilua vs Joseph Rashid Mtunqufa, Civil Appeal No. 178 of 2019 (unreported). As for the third ground of appeal, Ms Fatuma averred that it is a cardinal principle of law that each case ought to be determined according to its own peculiar circumstances. That, in the case at hand, the Appellant tendered exhibit PI, consisting of two letters written by the Respondent using both names of Nagunwa Mkumbo Makalla and Stanley Yona Makala. That in those letters, the Respondent was seeking for extension of time of lease to May 2017. That, the Appellant evidence was also collaborated by the evidence of the Respondent and exhibit D l. Thus, according to the Appellant, all such evidence entail that the Appellant is the lawful owner of the suit land and not otherwise. With regard to the fourth ground, Ms Fatuma argued that the Respondent did not adduce evidence on when he handed back the suit property to the Appellant. That, failure to adduce that evidence is sufficient proof that the suit property was never handed back to the Appellant. Pointing at the evidence adduced by the Respondent during trial, Ms Fatuma argued that there was no evidence from the Respondent suggesting that he took any legal steps against the Appellant upon realisation, as he contended, that the disputed property did not belong to the Appellant. Further, that the Respondent, in his written statement of defence, did not claim back the money he allegedly wrongly paid to the Appellant as rent. That is, there was no counter claim as it would have been the case had the allegations made by the Respondent been true. On this, she made reference to Order VIII Rule 9(1) of the Civil Procedure Code and the case of Melchiades John Mwenda vs Gizeila Mbaqa (Administratrix of the estate of John Japhet Mbaga - deceased^ & 2 Others, Civil Appeal No. 57 of 2018. 5 | P :i c. Expounding on the fifth ground of appeal, the Appellant's counsel submitted that the evidence adduced by the Appellant depicted that the Respondent had and used two names and that the Respondent did not cross examine the Appellant on that particular fact. That, failure to cross examine a witness on an important fact amounts to acceptance of the truth of the evidence by that witness. Lastly, on the sixth ground of appeal, Ms Fatuma submitted that, since the Respondent alleged that Arusha City Council was the lawful owner of the leased property, then he ought to have joined it as a third party by virtual of Order 1 Rule 14(l)(a) & (b) of the Civil Procedure Code. In support of this position, the learned advocate made reference to the case of Sunlon General Enterprises Building Construction vs Hosein Dhawabu, Civil Appeal No. 234 of 2020. Ms Fatuma, therefore urged the Court to allow the Appeal with costs. Opposing the Appeal, Mr Oola generally contested all the grounds of appeal and supported the finding of the trial tribunal. Responding to the first and second grounds of appeal jointly, Mr Oola contended that, since the Appellant claimed to be the lawful owner of the suit premises, he was duty bound to prove the same in terms of tendering the allocation letter or any document issued by the City Council to him. That, the Appellant also failed to tender the building permit to prove that he in fact built the suit premises. That, instead of bringing proof, the Appellant shifted the burden of proof to the Respondent who was to prove that the suit property is lawfully owned by Arusha City Council. Mr Oola, cited the decision in Martin Fredrick Raiabu vs Ilemela Municipal Council and Another, Civil Appeal No. 197 of 2019 to support that assertion. Responding to the third ground of appeal, Mr Oola stated that the Appellant did not have any proof to back up his allegations that he was granted the land where the suit premise was built by Arusha City Council in writing in the year 1999. That, the Appellant failed to tender any written document to substantiate the said allegation. That, it was surprising that in his testimony the Appellant did not even know the size of the suit land. Contesting the fourth ground, Mr Oola contended that the ground raised by the Appellant has no merits, as the issue that was before the trial tribunal was whether the Respondent had rental arrears claimed against him by the Appellant. That, whether or not the suit land was handed back to the Appellant was not an issue for discussion. 7 |P a £ p According to Mr Oola, the Appellant's claims of rental arrears from July 2013 could not be sustained for lack of proof. That, as per exhibit D l, the only period covered by the lease contract was between 6th August 2016 and 15th May 2017. That, the evidence also reveals that there existed another tenancy agreement with a person named Nagunwa Mkumbo and Arusha City Council, that is exhibit D3. For him, a reading of exhibit PI reveals that the same does not concern the Appellant and the Respondent. That, as per exhibit D l and D3, the Appellant could not claim rent arrears from the Respondent before 2016 and after 2017. With regards to the claim that the Respondent ought to have filed a counter claim, it was Mr Oola's view that there was no any claim or indemnity' between the Respondent and Arusha City Council. Regarding the fifth ground of appeal, Mr Oola was of the view that the trial tribunal properly evaluated evidence; particularly, the relevancy of exhibit PI and P2. That, as per the evidence of SU2 and exhibit PI, it is obvious that the said Nagunwa Mkumbo, who testified as SU2, is a different person from the Respondent. Opposing the sixth ground, Mr Oola argued that the complaint in the said ground was the same as that raised in the first ground of appeal. That, it was not the responsibility of the trial tribunal to bring evidence to 8 I p .1 s e substantiate the Appellant's claims. To him, the Appellant failed to prove his ownership over the disputed land as the burden of proof lies on the one who alleges. That, since the Appellant failed to discharge its duty then the trial tribunal properly determined the dispute before it. In the rejoinder submissions, Ms Fatuma reiterated her submissions in chief. Regarding the burden of proof, she countered that, since it was the Respondent who pleaded that the disputed land was owned by Arusha City Council, then he had to prove the same. To back up that position, reference was made to the Court of Appeal decision in Crescent Impex (T) Limited vs Mtibwa Sugar Estate Limited, (Civil Appeal No. 455 of 2020) T20231 TZCA 17501 Tanzlii (unreported). Having outlined the submissions made on behalf of the parties herein, it behoves me to make a determination of the appeal. I have keenly considered the record of the trial tribunal, the grounds of appeal and the rival submissions for and against the appeal. The issue for determination is whether the appeal has merit. I have noted that grounds 1, 2, 3, 4 and 6 of the Appeal revolve around the issue whether or not the Appellant is the owner of the premise where the Respondent is or had previously rented. It is only ground 5 of the Appeal which appears to be different, in that it seeks to suggest that the 9 |Paf < Respondent was using two names interchangeably. Going with the proceedings and the decision of the trial tribunal, I am hesitant to blame the Appellant or his advocate for the confusion regarding the cause of action and what the trial tribunal was to or not decide upon. In order to grasp the issues in contention of the parties herein, I had to go back to the pleadings filed at the trial tribunal. This is keeping in line with the settled principle of the law that in civil litigation the parties' pleadings set a road map of their cases and are binding upon them. The Court of Appeal has repeatedly insisted on this position of law in a number of decisions. In Barclays Bank T. Ltd vs Jacob Muro, Civil Appeal No. 357 of 2019 r20201 TZCA 185 Tanzlii the Court stated as follows: "We feel compelled, at this point, to restate the time-honoured principle o f law that parties are bound by their own pleadings and that any evidence produced by any o f the parties which does not support the pleaded facts or is at variance with the pleaded facts must be ignored, "(emphasis added) The above position was reiterated in the case of Indo- African Estate Ltd vs District Commissioner for Lindi District & Others (Civil Appeal No. 90 of 2023) T2024] TZCA 450, which cited with approval the decision in the case of James Funke Gwaqilo vs The Attorney General, Civil Appeal No. 67 of 2001 where it was held that: 10 | P a g e "The function o f pleadings is to give notice o f the case which has to be m et A party must therefore so state his case that his opponent wiii not be taken by surprise. It is also to define with precision the matters on which the parties differ and the points on which they agree, thereby to identify with clarity the issues on which the court wiii be called upon to adjudicate to determine the matters in dispute..." mphasis added) Suffices to state that parties to a dispute appear before a court for a specific purpose. That purpose is garnered from the pleadings and the court is bound to adjudicate on that purpose and decide either way. In the case under consideration, the parties in their amended pleadings pleaded on their case and made prayers to which they wished the trial tribunal to adjudicate and determine. I have encountered difficulties in understanding why the issue of who is the lawful owner of the leased premise garnered prominence. Ownership of the leased property was not among the pleaded matter by the Applicant herein and the Respondent did not state in the amended written statement of defence that he had another landlord other than the Appellant. The same yardstick which enjoins parties to be bound by their pleadings applies to the adjudicating tribunal or court. While adjudicating a dispute between parties, a court is bound by the parties' pleadings. As per the authorities above cited, any evidence produced by any of the parties which does not support the pleaded facts or is at variance with the pleaded facts ought to be ignored. It is also important to note that issues for determination are extracted from the pleadings of the parties. From them, areas of conflict or differences are identified and guide the parties in giving evidence in support or at variance thereof. Drawing of issues is an important aspect in any trial as issues are the lamppost which enlightens parties to the proceeding, and the trial court as to what is the controversy between the parties, what is the evidence required and where the way to the truth and justice lies. The Court of appeal decision in Registered Trustees of Vtqnan Education Foundation, Bangalore, India & Others vs National Development Corporation & Others (Civil Appeal 88 of 2020) F2022] TZCA 513 Tanzlii vindicate what I have hitherto stated. Since the issue of ownership of the suit land was not among the pleaded facts by the parties, then the trial tribunal erred both in law and in fact to raise it and to rule that the Appellant was not the lawful owner of the suit premises. Flad ownership of the suit premises been the issue, then, as suggested by the Appellant in five of the six grounds, all necessary parties to the dispute ought to have been parties to the dispute. 12 | P k e In my analysis of the pleadin> filed by the parties, the trial tribunal was to determine whether any rent was in arrears and whether the Respondent ought to have been evicted from the leased property. As a wrong issue was crafted, the Appellant was forced to shift gears and try to justify his ownership of Lie suit property. It is unfortunate that the decision made by the trial tribunal regarding ownership may have adverse effects such as disentitling the rightful owner and confer title to an undeserving person. :■ * ^<4* That being said, and without prejudice to the merits or demerits of the grounds raised, I find and hold that the trial tribunal's handling of the dispute before it was wanting It wrongly crafted and entertained evidence on an issue which fell outside the pleadings filed before it Justice requires that the matter be re-adjudi :cited by the trial tribunal on issues drawn from the pleadings of the put :i !s. In the upshot, the appeal sue;eeds on the premises stated above. The file is remitted back to the trial tribunal for a retrial. For avoidance of doubts, the retrial should commence* with the crafting of issues before taking evidence. As the ailing herein was perpetuated by the trial tribunal and is not attributed to any of the [ arties I order that each of the parties shall bear their own costs. 13 | P * O DATED and S IG N E D in A R U S F /i iliis 26th day of Juiy 2024. Y.b T Mase-ra JU D G E Right of Appeal explained to the >srtiers.