Jdg Land Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA. IN THE SUB-REGISTRY OF MANYARA AT BABATI LAND APPEAL NO 22769 OF 2024 (Originating from the District Land Housing Tribunal for Mbulu at Dongobesh Land Application No. 32 OF 2022) ANDREA AXWESSO ……………………………....…………………APPELLANT VERSUS THE REGISTERED TRUSTEES OF KANISA LA MUNGU LA TANZANIA………..……………….……………………..RESPONDENT JUDGMENT 11th Dec. 2024 & 11th March, 2025 Kahyoza, J.: The Registered Trustees of Kanisa La Mungu (the respondents) sued Andrea Axwesso (the appellant) before the District Land and Housing Tribunal (the tribunal) for trespassing to the parcel of land measuring 260 paces by 60 paces by 14 paces located at Hamasa village, Nahasey ward. The tribunal decided in favor of the respondents. The appellant preferred this appeal contending that; one, the tribunal failed to evaluate the appellant’s evidence, hence, arrived at unattainable decision; two, the respondents did not prove the case to the required standard; three, the tribunal erred to rely on the respondents’ weak and contradictory evidence; and four, the tribunal erred to admit and rely on irreverent exhibits M1 and M3. The issues raised by the appellant’s four grounds of appeal are- 1. did the tribunal properly evaluate the evidence? 2. did the respondent prove the case to the required standard? 1|Page 3. Was the respondent’s evidence contradictory and unreliable? 4. Were exhibits M1 and M3 properly admitted and relied upon? A brief background is that; the appellant and the respondent trace their title to the disputed land from Axwesso Tluway, the appellant’s father. The respondents’ claim is that the appellant’s father gave them the disputed land in 1987. The appellant also alleged that he acquired the suit land from his father. Neither the appellant nor the respondents tendered a document to prove how they acquired title from the original owner. The evidence of both sides is basically oral. The respondents claimed that the appellant trespassed to the disputed land in 2018. They sued the appellant before the district land and housing tribunal which found in their favour. During the hearing of the appeal both parties were represented. Mr. Basil Boay advocate appealed for the appellant and Mr. Abdallah Kilobwa appeared for the respondent. They submitted in depth. I will refer to their submissions while answering the issues. Did the respondents prove the claim? The appellant’s advocate argued the first, second and third grounds of appeal jointly, that respondents’ contention and evidence that the appellant’s father gave them the suit land in 1987 was fallacious. He added that the respondent did not prove how they acquired the suit land as they did not tender documentary evidence to prove that the appellant’s father gave them the suit land. He contended that Pw1 deposed that they requested the land from the appellant’s father Axwesso in 1987. However, during cross examination he deposed that he did not see the appellant’s father. 2|Page A second witness (Pw2) deposed that it was the appellant’s father who gave them the suit land. During cross examination, he stated that the appellant’s father was not present but it was the appellant’s mother who was present. He added that they requested for the land from traditional leader. While replying to the chairman’s question, Pw2 mentioned persons who were present as Matley Axwesso, Anna Axwesso and the appellant’s mother and that on behalf of the church, it was Pastor Martin Niima who was present. For that reason, since the appellant’s father was not mentioned as one of persons present, he was not present. A fourth witness (Pw4) deposed that the church was represented by Pastor Barkieli Salme who requested the land on behalf of the church. The tribunal’s record shows that the appellant’s father died in 1979. The respondent’s witness deposed that the appellant’s father gave them land in 1987. If the appellant’s father died in 1979, how did he give the land to the respondent in 1987. The appellant’s advocate submitted that the respondents’ evidence is contradictory and did not prove how and from whom, they obtained the land. Exhibit M.3 tendered by Pw5 showed that they were allocated the land by the village council through the land committee. The respondents’ evidence does not depict who gave them the disputed land among the appellant’s father in 1987 or the appellant’s mother in 1987 or the village council in 2001. There is no evidence to prove the size of the land allocated to the respondents. The boundaries of the land given to the respondents were not proved. The tribunal did 3|Page not analyze the evidence properly. He prayed the Court being the first appellate court to re-analyze the evidence and make its own findings. He cited Suzan Peter Mbaria vs Barikiel Joseph Bee (Civil Appeal 6 of 2022) [2022] TZHC 14266 (24 October 2022), Hemed Said v. Mohamed Mbiu [1984] TLR 113 and section 110 and 111 of the Evidence Act [Cap. 6 R.E. 2022]. He submitted that in the latter case, the Court held that a party whose evidence is heavier is the one who wins the battle. To conclude his submission, he cited the case of Yusuph Suleman Kimario v. Administrative General, Civil appeal No. 266 of 2020 tanzilii [2022] TZCA 306. Mr. Kilobwa, the respondents’ advocate, opposed the appeal. He argued that the record showed that the respondents’ evidence was consistent. The respondents’ witness proved how they obtained the suit land. They proved the size of the land and the size of the disputed land. The respondents tendered exhibits, showing how they acquired the suit land. The respondents deposed that they were given the disputed land in 1987. The appellant’s evidence supported that contention. The appellant admitted the fact that the respondents were given the disputed land in 1987. As to the contention that the appellant’s father died in 1979 for that reason was not present to allocate the disputed land to the respondents in 1987, the respondents’ advocate submitted that there was no evidence to prove the allegation. The appellant’s evidence was weak and he did not state the size of the land allocated to him. He did not describe the land he sought to be declared the lawful owner. 4|Page He deposed that the appellant’s evidence was contradictory. He argued that there existed contradictions between the appellant and his witness, Amma Axwesso. The appellant deposed that he was given the suit land in 1987, the witness deposed it was in 1975 when the appellant was given his land but he contended that he did not know the size of the appellant’s land. Another appellant’s evidence Paulina Axwesso deposed that the disputed land was 6 acres. He submitted that the appellant did not know the size of the land and the year when the land was allocated to him, thus, tribunal was right to find in favor of the respondents, who was the applicant. In his short rejoinder, Mr. Basil, the appellant’s advocate submitted that the respondents’ advocate contended that the respondents acquired the land in 1987 but he did not point out from whom his client obtained land. As to when the appellant’s father died, he referred the court to page 43 and 49 of the proceedings. They deposed that their father died in 1979. The witness deposed that the disputed land was 1 ½ which was allocated to the appellant. The respondents’ evidence did not specify the size of the land, but the witnesses described the length and width of the land. I wish to say the obvious that the burden of proof was on the respondents’ shoulders to prove the allegation that suit land belonged to them and that the appellant’s father allocated them the suit land. The duty to prove in a civil suit is on balance of preponderance. It is also settled that the burden of proof in civil case is not static, it shifts from the plaintiff or the applicant before the tribunal to the defendant or the respondent, after the plaintiff or the applicant has discharged his duty. The Court of Appeal in Yusufu 5|Page Selemani Kimaro vs Administrative General & Others (Civil Appeal 266 of 2020) [2022] TZCA 306 (24 May 2022) stated that- “...Going by the above exposition of the law, it would be insincere if not a misapprehension of the law on the part of Mr, Halfani to complain as he did that the trial Judge had shifted the onus of proof onto the second respondent. For, in civil cases, the onus of proof does not stand still, rather it keeps on oscillating depending on the evidence led by the parties and a party who wants to win the case is saddled with the duty to ensure that the burden of proof remains within the yard of his adversary. This is so because as per the case of Raghramma v. Chenchamma, A 1964 SC 136, such a shifting of onus is a continuous process in the evaluation of evidence.” The respondents had a duty to prove their title to the disputed land and once they discharged their duty, the burden of proof shifted to the appellant to establish his title. It is also settled that the weakness of the defendant’s evidence does not lessen the plaintiff’s burden of proof. That is, the plaintiff must discharge his burden of proof notwithstanding the defendant’s evidential weight. The Court of Appeal, in Paulina Ndawavya v. Threresia Thomas Madaha, Civil Appeal No. 53/2017 (TCA unreported) held that- “the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his and the burden of proof is not diluted on account of the weakness of the opposite party’s case.” (emphasis is mine) There is no doubt as pointed above that the appellant and the respondents have adjacent lands and both claiming that they trace their title from one Axwesso Tluway. The respondents’ witness, Barkiel Sarme (Pw2) deposed that he was present in 1987 6|Page when the late Axwesso Tluway allocated land to the respondents. He added that he involved his family members. The appellant’s defence was that late Axwesso Tluway gave him the suit land in 1987 and 1990. The appellant’s advocate submitted that the respondents’ allegation that late Axwesso Tluway gave them the disputed land in 1987 was false as the appellant’s father died in 1979. It is unfortunate that, the appellant’s contention that his father died in 1975, so he was not there to allocate the land in 1987, arose in the defence. He did not cross- examine Barkiel Sarme (Pw2) regarding the allegation that late Axwesso Tluway allocated the disputed land in 1987 when he was dead. I was not convinced that the late Axwesso Tluway died in 1975 as the appellant was trying to impress on the court. The question is whether the respondents proved that late Axwesso Tluway allocated land to them. Barkiel Sarme (Pw2) deposed that he was the one who asked for land from the late Axwesso Tluway. However, while answering questions from the assessors, he deposed that he requested for land from the family of Mr. Axwesso Tluway. During cross-examination from the appellant Barkiel Sarme (Pw2) testified that- “Mimi ndiye niliye omba eneo hilo kwa ajili ya Kanisa kutoka kwa mzee Axwesso Tluway, sifahamu mgawo wa familia ya Mdaiwa. literal translation is that “it is me who asked for land for the Church from the Oldman Axwesso Tluway.” While answering questions from assessors, Barkiel Sarme (Pw2) deposed that- “Mimi niliambo eneo hilo kwa familia ya mzee Axwessa Tluway na siku muomba mzee Axwessa Tluway, na Mdaiwa alikuwepa tukipewa eneo hilo,…” literal translation means, It is me who asked for the land from the family of Mzee Axwesso Tluway and that he did not ask for land from Mzee Axwesso 7|Page Tluway. And on the day, he gave us land to the respondent [the appellant] was present….” There exists contradiction in the testimony of Barkiel Sarme (Pw2) as to whom he asked for land from. Did Barkiel Sarme (Pw2) request for land from Mzee Axwesso Tluway or Mzee Axwesso Tluway’s family? I find the contradiction to be a minor one as there is no dispute that respondents (the church) owns land, which is not subject of dispute, lawfully from a person who had mandate to pass title whether Mzee Axwesso Tluway or his familiy. The central dispute is not whether a person who allocated land to the respondents had title to pass rather what was the size and boundaries of the land allocated to them. I considered Daniel Haygaru (Pw3)’s evidence who was once the village chairman. He deposed that in 2001 when the village put boundaries to the disputed land, they involved the neighbours to the disputed land. He deposed that they involved the appellant who was not only a neighbor but also a follower of the respondents’ church at the time. For Clarity, I quote- “…kuwa eneo la mgogoro najua mwaka 2001 nilipata nyaraka ya Mkuu wa Wilaya ya Mbulu akituagiza tuweke mipaka ya taasisi iliyopa ndani ya Kijiji chetu ambapo pia tuliweka mipaka ya katani ya Mdai likiwa na ekari 6 na tuliwashirikisha majirani wa Kanisa hilo na tuliandaa muhtasari na mmoja tulimkabidhi Mdai, ninacho jua eneo la mgogoro ni mali ya Kanisa (Mdai), Mdaiwa anaishi jirani na Kanisa na siku ya kuweka mipaka na yeye alikuwepo tulimshirikisha, na wakati huo alikuwa ni mshiriki na kwa sasa hasali hapa, Mdaiwa anapakana na Kanisa.” Literal translation is that, “the respondent lives closure to the church and on the day 8|Page of setting the boundaries, he was present and we involved him, [and] at the time he was the follower of that church.” The appellant did not cross-examine Daniel Haygaru (Pw3) regarding his evidence that they set the boundaries of the respondents’ land, including the disputed one, in his presence and that they involved him. Failure to cross-examine a witness is tantamount to accepting that evidence. The Court of Appeal held in Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) that- “Failure to cross-examine a witness on a particular important point may lead the court to infer that the cross-examining party accepts the witness' evidence and it will be difficult to suggest that the evidence should be rejected. For instance, in Shadrack Balinago vs. Fikiri Mohamed @ Hamza, Tanzania National Roads Agency (TANROADS) and Attorney General, Civil Appeal No. 223 of 2017 (unreported) it stated: "As rightly observed by the learned trial judge in her judgment, the appellant did not cross-examine the first respondent on the above piece of evidence. We would, therefore, agree with the learned judge's inference that the appellant's failure to cross-examine the first respondent amounted to acceptance of the truthfulness of the appellant's account" I take it proved that the appellant was present and involved when the boundaries were set. It is hard to believe otherwise and difficult for the appellant to suggest that the evidence should be rejected. I find that if the appellant was discontent as to the boundaries of the respondents’ land, he ought to have raised it at that time. The appellant’s restraint implies that he acquiesced to the boundaries the village authorities set in 2001. 9|Page Stephano Axwesso Sanka (Pw4), the appellant’s brother deposed that the suit land belonged to the church. Stephano Axwesso Sanka (Pw4) who is the Bishop of the respondents’ church testified that in 1987 his father and mother gave a piece of land to the respondents’ church. They built a church in 1987. He insisted that it was Barkiel Sarme (Pw2) who requested for the land from their parents. The appellant did not cross- examine Stephano Axwesso Sanka (Pw4) on which year their father passed on or whether it was true that their late father allocated the disputed land to the respondents. I have no doubts that the respondents established a prima facie case and thus, the burden of proof shifted to the appellant to establish his title. The appellant’s defence was that his late father gave him the disputed land. He did not specify when his father gave him the land. He deposed that after sometime his brother, Stephano Axwesso Sanka (Pw4), requested their mother for land to build a church. Their mother gave them a piece of land for building the church, which was one and half acres of land. He deposed that the church trespassed to his land. During cross-examination, the appellant deposed that his father gave him the disputed land in 1990 and 1987. He testified during cross- examination that- “Nilipewa eneo la mgogoro mwaka 1990 na baba yangu Axwesso, nilipewa mwaka 1987 na baba yangu Axwesso kama nilivyo elezea kwneye utetezi wangu, sikupewa eneo hilo kwa maandishi, sifahamu ukubwa wa eneo nililo pewa na baba yangu, kanisa walipewa eneo hilo mwaka 1987 kati ya mimi na kanisa mimi ndiye niliye pewa eneo hilo kwanza, kanisa walipewa ekari moja na nusu, Mchungaji.” 10 | P a g e Literal Translation is that” I was allocated the disputed land in 1990 by my father Axwesso, I was given the disputed land in 1987 as I testified but no document was executed. I did not know the size of my land, which my father gave me”. I considered the appellant’s defence and formed an opinion that it was hard to believe his evidence. He was not even sure as to when his father gave him the disputed land. He was not certain whether his father allocated him the suit land in 1987 or 1990. Amma Axwesso, (Dw2), the brother of the appellant and Stephano Axwesso Sanka (Pw4), deposed that their mother gave one and half acres of land to the respondents’ church in 1987. He was present. He deposed that before his death, Axwesso Tluway gave land to his sons. He added that in 1987 when their mother allocated land to the church, she adjusted the boundaries of the land which Axwesso Tluway, their father, had allocated to the appellant. He deposed further that the disputed land which was one and half acres belonged to the appellant. During cross-examination, Amma Axwesso, (Dw2) deposed that Axwesso Tluway, their father, gave the disputed land to the appellant in 1975. He added that the appellant was in Std II when he was given the disputed land in 1975. The appellant told the tribunal that he was 55 years in 2023, thus, simple calculation depicts he was 7 years in 1975. I doubt if the appellant was 7 years old could have been in Std II and if he lawfully acquired land and whether he knew the boundaries of the land allocated him. In addition, Amma Axwesso, (Dw2) and the appellant contradicted each other as to when the appellant was allocated land. Amma Axwesso, (Dw2) deposed that the appellant was allocated land in 1975 and the appellant deposed that it was in 11 | P a g e 1987 and later that, it was in 1990. It is evident that one of them or both gave false evidence. In short, it is hard to rely on their evidence. The appellant’s other witness Rebeka Axwesso (Dw3) deposed that Axwesso Tluway, their father, died in 1979 and supported the appellant’s evidence that he was given the disputed land in 1987. She deposed I quote- “Mdaiwa ana eneo lake alilopewa na baba yake Axwesso Tluway sijui yana ukubwa gani kwani yapo kwenye mteremko, eneo walilopewa Mdaiwa mwaka 1987 linatumiwa na kanisa na eneo ambalo lenye mgogoro ni mali ya Mdaiwa. Stefano Axwesso ni mdogo wangu na ni Askofu wa Kanisa Ia Mungu Ia Tanzania, Stefano Axwesso wakati Mdai anapewa eneo hilo alienda kufanya kibarua huko Arusha huyu Stefano Axwesso ana maeneo yake kwenye maeneo ya baba na sifahamu yana ukubwa gani.” “Literal translation means “the respondent was given a piece of land by his father Axwesso Tluway which I do not know its size as it on the slope, the land the appellant was given in 1987 is occupied by the church, which is the disputed land. It is the appellant’s land. It was hard to find Rebeka Axwesso (Dw3) a witness of truth. She deposed that their father died in 1979 but still she testified that the church was occupying the land her father gave to the appellant in 1987. If it is true that the appellant’s father died in 1979, obviously, he was not there to allocate the disputed land to the appellant in 1987. I, therefore, find it not proved that the appellant’s father died in 1979. She was not a trustful witness as she gave contradictory testimony. Paulina Axwesso (Dw4) supported Amma Axwesso, (Dw2)’s testimony that their father allocated the disputed land to the appellant. She also supported Rebeka Axwesso (Dw3)’s evidence that Axwesso Tluway, their father, died in 1979. During cross- 12 | P a g e examination, Paulina Axwesso (Dw4) testified that she did not know when their father allocated the disputed land to the appellant. Amma Axwesso, (Dw2) deposed that the appellant was given the disputed land in 1975 while the appellant and her sister Rebeka Axwesso (Dw3) testified that it was in 1987 when the appellant’s father gave the disputed land to the appellant. In addition, the appellant was uncertain whether it was in 1990 or in 1987 when his father gave him the disputed land. The inconsistences in the defence evidence forced me not to believe the defence evidence. In addition, the appellant’s written statement of defence was that his father gave him the disputed land in 1987 whereas Amma Axwesso (Dw2), one of the appellant’s witness testified that the appellant’s father gave the appellant the disputed land in 1975. It is apparent that Amma Axwesso (Dw2)’s testimony contradicted the appellant’s written statement of defence. It is trite law that a party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case. (See Makori Wassaga V. Joshua Mwaikambo & Another [1987] TLR 88). Thus, the evidence which contradicts the pleadings has no value. Consequently, I am of the view that Amma Axwesso (Dw2)’s evidence is valueless. I find that the respondents’ evidence was heavier than that of the appellant, thus the proved their claim to the required standards. Were exhibits M1 and M3 properly admitted and relied upon? The appellant’s advocate submitted that exhibit M.3, a copy of the minutes of the land committee, was not part of the pleadings. It was not attached to the application. 13 | P a g e The Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2002, GN No. 174/2003 allow documents not part of pleadings to be tendered. However, the respondents did not comply with the procedure of tendering documents not attached to pleadings. They violated regulation 10(3)(a) of the Regulations, which requires before such a document is tendered to serve the adverse party with a copy. Exhibit M.3 was tendered before the appellant/ respondent was served. The appellant (the respondent) was taken by surprise. The appellant saw the exhibit for the first time in court. The tribunal did not consider the authenticity and the same was manufactured for that case. The tribunal did not consider Regulation 10(3)(b) of the Regulations, 2003. He added that while the exhibit shows that the members of the land committee did not sign the document, a stamp used was that of WEO and not of the village land committee. The boundaries stated in exhibit M.3 are different from those stated in the application. Example, Exhibit M.3 on the South there is Andrea Axwesso while in the application on the South border there is Sanka Axwesso, while on the East part there is Andrea Axwesso and valley while in the application on the East there Walter George. The exhibit is titled “Ugawaji na Uwekezaji wa Uwekaji wa mipaka” but the witness deposed that the disputed land was given to the respondent by his father. Exhibit M.3 does not show who was present on behalf of the church when the land committee was allocating land. He referred the Court to the case of Makori Wassanga v. Joshua Mwaikambo and another [1987] TLR 88 where it was held that a party is bound by pleadings and the case of Barclays (T) Ltd v. Jacob Muro, civil Appeal No. 357 of 14 | P a g e 2019, tanzilii [2020] TZCA 1875. If there is variance between the evidence and document, the court must ignore such evidence. He concluded that, exhibit M.3 was not properly tendered and was not required to be relied upon. He prayed the appeal to be allowed. As to Exhibit M.3, the respondents’ advocate submitted that it was properly admitted as the appellant (the respondent before the tribunal) was given a copy and given an opportunity to object. He did not object when it was tendered. As to the variance of the boundaries stated in the application and those found in Exhibit M.3, Mr. Kiloba advocate submitted that that the size of the boundaries in Exhibit M.3 refers to the whole land owned by the respondent, while the boundaries in the application refers to the disputed land only. It is therefore proper for there to the variance between the boundaries stated in the application and those stated in Exhibit M.3. He refuted the contention that Exhibit M.3 was manufactured since the appellant did not explain when exhibit was manufactured. He submitted that there was no contradiction between the respondents’ evidence and Exhibit M.3. The respondents’ witnesses deposed that the respondents acquired the land in 1987 and that in 2001 the land was registered, (kurasimisha) and not allocation. He argued that that Exhibit M.3 does not contravene the respondents’ evidence that they were given the suit land by the appellant’s father. 15 | P a g e The respondents’ advocate concluded that the respondents proved their claims by oral evidence and documentary exhibits unlike the appellant who tendered contradictory oral evidence. He prayed the appeal to be dismissed. In his short rejoinder, Mr. Basil, the appellant’s advocate, submitted that Exhibit M.3 was not properly admitted. He invited the court to look at page 28 of the proceedings which showed that the exhibit was not properly admitted. He added that the contradictions in the respondents’ case are greater in extent than the contradictions in the appellant’s case. For that reason, the appellant was required to be declared the winner. He prayed for the judgment of the tribunal to be vacated and the appellant declared the winner. The appellant’s advocate complained that the respondents’ witness did not comply with the procedure of tendering exhibit not attached to pleadings as provided under regulation 10(3) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations (the Regulations) as he tendered the exhibit without first giving a copy to the appellant. I wish to quote the regulation for the sake of clarity. It provides that- "10-(l) The Tribunal may at the first hearing receive documents which were not annexed to the pleadings without necessarily following the practice and procedures under the Civil Procedure Code, 1966 or the Evidence Act, 1967 as regards documents. (2) Notwithstanding sub-regulation (1) the Tribunal, may, at any stage of the proceedings before the conclusion of hearing allow any party to the proceeding to produce any material documents which were not annexed or produced earlier at the hearing. 16 | P a g e (3) The Tribunal shall before admitting any document under sub regulation (2)- (a) ensure that a copy of the document is served to the other party; (b) have regard to the authenticity of the documents.” (Emphasis is added) Reading the sub-regulation (3) of the regulation 10 of the Regulations, I agree with the appellant’s advocate that before tendering a document which was not annexed to the pleading, the tribunal must ensure that document is served upon a party against whom the document is tendered. The law does not provide how and within which period a party must be served with the document not attached to the pleadings. My position is that, if the document not attached to the pleadings is served during the hearing, the party wishing to tender the document will have complied with the law. I do not wish to impose a duty on party intending to rely on a document not annexed to the pleadings, to give the document to the adverse party in advance. If the party, wishing to tender a document not attached to the pleadings, gives the adverse party an advance notice, he will have complied with the law. Also, if that party gives the document on the first hearing date, that is in the court during the hearing, he will have complied with the law and the adverse party cannot complain that he has been taken by surprise. I am alive of the possibility of manufacturing evidence created by regulation 10 (2) and (3) of the Regulations, but I do not thing it is proper to circumvent the regulation by applying the strict rules of procedure under the Civil Procedure Code or rules of evidence under the Evidence Act. The Regulations intended to put in place simple procedures of tendering exhibits to ensure justice is administered without being bound by undue technicalities. It should be admitted that admission of exhibit is one thing and 17 | P a g e according weight is another, that is why sub-regulation (3)(b) of regulation 10 imposes a duty to the tribunal to consider the authenticity of the document. I am of the firm view that the procedure for admission of the document not annexed to the application matters less if, the tribunal properly considered the authenticity of the document. It is trite law that the judgment of any court must be grounded on the evidence properly adduced during trial otherwise it is not a decision at all. As the decision of the High Court is grounded on improper evidence, such a decision is a nullity. (See Shemsa Khalifa And Two Others vrs Suleman Hamed, Civil Appeal No. 82 of 2012.) In the present case, I see no reason, to hold that exhibit M.3 the minutes which were not attached to the respondents’ application was not properly adduced. Even if, there existed the alleged procedural irregularity, it is curable one under section 45 of the Land Disputes Courts Act, [Cap. 2016 R.E 2019] which provides- "S. 45. - No decision or order of a Ward Tribunal or District Land and Housing Tribunal shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account of the improper admission or rejection of any evidence unless such error; omission or irregularity or improper admission or rejection of evidence has in fact occasioned a failure of justice." [Emphasis].“ The appellant did not convince me that the tribunal violated Regulation 10(3) (a) of the Regulations on the ground he saw a copy of the exhibit for the first time in court. I see nothing wrong as per regulation 10(3) for the appellant to see the document in court before it was tendered. 18 | P a g e It is on record that the appellant did not object exhibit to be admitted. He has complained to this first appeal. It is trite in law that, the appellate court cannot consider or deal with issues that were not canvassed, pleaded and not raised at the lower court. See Farida and Another v. Domina Kagaruki, Civil Appeal No. 136/2006 CAT. I dismiss the fourth ground of appeal for want of merit. In fine, I find no merit in the entire appeal and dismiss it with costs. I uphold the tribunal’s judgment and decree that, the appellant trespassed to the respondents’ land. It is ordered accordingly. Dated at Babati this 11th day of March, 2025. John R. Kahyoza Judge Court: Judgment delivered in the absence of the parties as the network was down. B/C Mr. Shedrack (RMA) present. J. R. Kahyoza JUDGE 11.3.2025 19 | P a g e