AMOSI MAZENGO vs MIKA MADOLE DRAFT Judgment Updated

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO 6532 OF 2024 (Arising from the District Land and Housing Tribunal at Dodoma in the Land Application No. 257 of 2021). BETWEEN AMOSI MAZENGO ……………………………………………..……………….APPELLANT VERSUS MIKA MADOLE (As the administrator of the estate of Late Wilson Madole) ….………………………..……….………….RESPONDENT JUDGMENT Date of last order: 12/12/ 2024 Date of Judgment: 25/02/ 2025 LONGOPA, J.: The appellant and respondent were parties to the land dispute in the District Land and Housing Tribunal for Dodoma. The disputed land is alleged 3 acres located at Mshikamano Street in Chamwino Ikulu Ward within Chamwino District of Dodoma Region. The appellant claims that the land was acquired through clearance of virgin land by himself in 2000 while the respondent’s claim is that such land belongs to the estate of his late father one Wilson Madole. The District Land and Housing Tribunal for Dodoma dismissed the application for lack of proof by the appellant that 1|Page land belongs to him. It was the decision of the Tribunal that neither the respondent did establish that such land belonged to the estate of his late father and the parties were advised to take appropriate measure to institute a fresh matter if they so desired. On 21st March 2024, the appellant being aggrieved with the decision of the District Land and Housing Tribunal for Dodoma instituted an appeal against the decision on the following grounds of appeal, namely: 1. That the Honourable Chairman erred in law and in fact for deciding the case to start afresh while the appellant evidence was sufficient to win the case and the same was properly found in the judgment of the tribunal. 2. That, the Honourable Chairman erred in law and fact for ordering that the appellant failed to adduce evidence on the boundaries of the disputed land while the same is well pleaded in his application which was used to institute the case. 3. That Honourable Chairman erred in law and fact for ordering the case to start afresh while the appellant 2|Page managed to prove the case on balance of probabilities as he cleared a land in dispute measured three acres since 2000 and has been developing the same up to date. 4. That, the Honourable Chairman erred in law and in fact for deciding that the appellant and his witness had contradictory evidence while is not, the evidence of SM 3 did not testify the appellant to be given the land in dispute and SM 3 evidence does not affect the appellant's evidence in relation to respondent's evidence. 5. That, the Honourable Chairman erred in law and fact for deciding the case to start afresh while it is the respondent who had wrong, weak and contradictory evidence. The parties appeared before me on 12th December 2024 for oral hearing of the appeal. Each party appeared in person fending for oneself. The parties’ respective submissions were short as follows: 3|Page The appellant stated that he had proved his case before trial Tribunal that the land belonged to him. He reiterated that with regard to boundaries of the disputed land, the appellant had stated in the application about the neighbours thus boundaries were specifically mentioned in the application. It was the submission of the appellant that he stated the boundaries in the District Land and Housing Tribunal. It was argued that on the strengths of his case, the appellant stated that his land was three (3) acres in my evidence not one acre as decided by the District Land and Housing Tribunal. It was reiterated that the witnesses of the appellant were three and testified very well the appellant was the owner of the land in question. These were David Masanika, Mariam Kusadika and the third one whose name cannot be recalled by the appellant. All the witnesses stated that they saw the appellant clearing the land in 2000. The appellant argued that regarding the weaknesses of the respondent were that all the witnesses were from the family members and they were contradicting each other. Those witnesses had differences on 4|Page the acreage. The respondent said the land is five (5) acres, while Richard stated that it is six (6) acres while the other stated that the land was seven (7) acres of land. Thus, there was contradictory evidence thus weak evidence on the respondent’s case. He thus prayed for the appeal to be allowed. On the other hand, the respondent argued that regarding the boundaries, the evidence of the appellant did not state about the boundaries of the disputed land. Neither the appellant nor his witnesses indicated/ testified on the boundaries of the land. It was the respondent’s witnesses who were consistent as each stated about the boundaries as they stated in their evidence. The respondent reiterated that it is not correct to say the respondent's evidence was weak and contradictory. It was not weak or contradictory. The respondent's witnesses testified consistently on the boundaries and the mode of acquisition of the land. He stated that it was the witnesses of the appellant who were contradictory thus the appellant is the one who had weak evidence. 5|Page Further, it was argued that the case was not heard afresh as the appellant stated. The decision of the District Land and Housing Tribunal was correct to decide in favour of the respondent as the appellant did not manage to prove his case. It was the respondent’s prayer that this appeal be dismissed with costs. Having heard the submission by both parties, it is this Court’s obligation to determine the validity or otherwise of the appeal upon thorough examination of the available record dispassionately. The first aspect to analyse is on whether the trial court erred in law to find that appellant failed to prove boundaries of the disputed land. To address this aspect, the appellant stated that application instituting the case before the District Land and Housing Tribunal was categorically stated in that application. It is admittedly that on record that neither of the witnesses of the appellant testified as to the boundaries of the disputed land. In the case of Salim Said Mtomekela vs Mohamed Abdallah Mohamed (Civil Appeal No. 149 of 2019) [2023] TZCA 15 (15 February 2023) (TANZLII), at page 5, the Court of Appeal reiterated that: 6|Page That said, since the pleading is a basis upon which the claim is found, it is settled law that, parties are bound by their own pleadings and that any evidence produced by any of the parties which is not supportive or is at variance with what is stated in the pleadings must be ignored. In the case of Mr. Mathias Erasto Manga vs M/s Simon Group (T) Limited (Civil Appeal No. 43 of 2013) [2014] TZCA 281 (19 March 2014) (TANZLII), at pages 8-9, the Court stated that: We are satisfied that the trial High Court judge erred in insisting on corroboration in the suit before him. All he was required to do was to find, on a balance of probabilities, and on the basis of the evidence before him, whether or not there was a contract for the loan of money or not. Lord Denning (M.R.) in MILLER vs MINISTER OF PENSIONS (1937)2, All E.R 372 at p. 374 puts down the standard of proof on a balance of probability thus:- "It must carry a reasonable 7|Page degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say "We think it is more probable than not" the burden is discharged, but if the probabilities are equal it is not". Again, in RE MINOR (1966) AC 563 at 586 it was held: " The balance of probability standard means a court is satisfied an event occurred if the court considers that, on the evidence the occurrence of the event was more likely than not". Necessarily, the cases quoted above insist on the principle that the yardstick of proof is the evidence available on record and whether it tilts the balance one way or the other (Emphasis added). Given the evidence on record do not indicate that appellant testified on the boundaries of the disputed land, it was legally correct for the trial Tribunal’s Chairperson to find out that there was no proof on the description/boundaries of the land in dispute. Thus, the 2nd ground of appeal must disintegrate for lack of cogent merits. 8|Page The rest of the grounds of appeal relate to the proof the case. Generally, in civil case proof of a case is on balance of probabilities. This is in accordance with section 3(2) (b) of the Evidence Act, Cap 6 R.E. 2022. It provides that: (2) A fact is said to be proved when- (b) in civil matters, including matrimonial causes and matters, its existence is established by a preponderance of probability. Indeed, the standard of proof is that of balance of probabilities which essentially meant that stronger evidence between the parties was the one to entitle that party with a decision of the court. It is settled law that a party who alleges must prove and a duty to prove that a particular fact exists lies on that person. This was the principle reiterated in the case of Martin Fredrick Rajab vs Ilemela Municipal Council & Another (Civil Appeal 197 of 2019) [2022] TZCA 434 (18 July 2022) (TANZLII), at page 9, the Court of Appeal stated that: Therefore, in civil proceedings a party who alleges anything in his/her favour also bears the evidential burden 9|Page and the standard of proof is on the balance of probabilities which means that, the Court will sustain and uphold such evidence which is more credible compared to the other on a particular fact to be proved. See: Anthony Masanga vs Penina Mama Ngesi and another, Civil Appeal no. 118 of 2014, Godfrey Sayi vs Anna Siame as Legal Representative of the late Mary Mndolwa, Civil Appeal no. 45 of 2017, Hamza Byarushengo vs Fulgencia Manya and four Others, Civil Appeal No. 33 of 2017 (all unreported). All the said decisions the Court dealt at considerable length on what constitutes proof on the balance of probabilities and the duty of the plaintiff to discharge the same before the burden shifts on the defence side and as such, it is incumbent on the plaintiff to discharge the evidential burden. We shall be guided accordingly in determining as to whether the Appellant did discharge the burden of proof. It is on record that all the three witnesses of the appellant failed to establish about the disputed land. First, there is no tangible evidence as to 10 | P a g e the manner of acquisition of the land as there is nothing indicating that such land allegedly cleared by the appellant was a bare land belonging to none. Second, neither of the witnesses proved about the description of the land in terms of size of the land and boundaries of the land in dispute. Third, PW 3 (SM 3) categorically testified that he never knew the location of the land in question. According to PW 3, the land was only one acre. PW 4 stated to have seen the appellant cultivating the land but stated lucidly that she was not aware how the appellant got the same. On the other hand, respondent’s evidence is weak on three main areas. First, the description of the land by the respondent’s witnesses is contradictory. Second, evidence on the neighbours to the land and size of the land. DW 1 stated about the boundaries of land that it borders Halfani on the North, Julius Mgata on the East, Yakuba Msigwa on the West and livestock route on South. The size of the land was said to be quarter an acre. DW 2 evidence revealed that the respondent gave an acre land to the appellant for cultivation on temporary basis only. DW 3 stated that the land given by the respondent to appellant was measuring an acre. The land 11 | P a g e borders Mwalimu Balisidya on the West, Livestock route on the South, Halfani on the North. Third, the timing as to when the respondent gave land to the appellant is conspicuously missing. Neither of three witnesses of the respondent stated when was the land in dispute was given to the appellant and for which duration to use it temporarily. The evidence on record cannot establish with certainty the ownership of the disputed land between the appellant and the respondent. I entirely subscribe to the analysis of the trial Tribunal that neither of the parties managed to prove the case to the required standard. The effect of failure to prove the case to the required standard entitles the court or tribunal to dismiss the case for lack of merits. This was the principle in the case of Agatha Mshote vs Edson Emmanuel & Others (Civil Appeal No. 121 of 2019) [2021] TZCA 323 (20 July 2021) (TANZLII), at page 28, the Court of Appeal stated that: In view of what we have endeavoured to discuss, the appellant failed to prove her case on the balance of 12 | P a g e probabilities and it cannot be safely vouched that she had discharged the burden as required under section 110 of the Evidence Act. That said, since the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges that burden, as earlier stated, the weakness of the respondents' case, if any, cannot salvage the plight of the unproven appellant's case. In our considered view, we agree with the manner in which the trial Judge addressed the second issue as to whether the respondents' had trespassed into the land in disputed. We are fortified in that account because since the burden of proof was on the appellant and not the respondents, and in the event she did not discharge the onus, the credibility of the respondents' account was irrelevant. As the appellant’s evidence on record reveals nothing but contradictory and lack anything cogent to establish that disputed land belonged to him, there is nothing trial Tribunal could do than finding out that the appellant failed to prove its case to the required standard of balance of probabilities. 13 | P a g e Totality of evidence on record could not in all fairness establish the ownership over the disputed land as there was no evidence with some precision and certainty on the mode of acquisition of the said land in question. Therefore, the 1st, 3rd, and 4th grounds of appeal lack merits thus they are overruled. The appeal therefore collapses for being destitute of merits. Each party to bear its own costs of this appeal. It is so ordered. DATED at DODOMA this 25th day of February 2025. E.E. LONGOPA JUDGE 25/02/2025. 14 | P a g e