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IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA LAND APPEAL NO. 20 OF 2023 (From the decision of the District Land and Housing Tribunal for Nzega District at Nzega in Land Application No. 17 of 2022) NGASA MAHAHILA......................................................... APPELLANT VERSUS ATANAZ SHILINDE HIBADU...................................... RESPONDENT Last Order: 03/7/2024 Judgement date: 3/10/2024 JUDGEMENT MANGO J The Respondent Ngasa Mahahila instituted Land Application No. 24 of 2022 before the District Land and Housing Tribunal for Nzega against the Appellant Atanaz Shilinde Hibadu praying for the following reliefs: i. Declaration that he is the lawful owner of the suit land ii. Eviction of the Appellant from the suit land iii. Permanent injunction against all persons related to the Appellant from entering and using the suit land iv. Costs of the Application and v. Any other reliefs that the Tribunal will find just to grant 1 In his Application, the Respondent claimed that, the land in dispute is his property. According to him, he traces his title over the land from his grandfather, the late Hibadu Gambuni Mgong'ho who bequeathed the land to him in the year 1978. He alleged that, the land measures 234 acres and it has the following borders; north river Bulenya, West Qibusa Mahemba, East Gambishi, South Andrea Kiasay. The Appellant claims ownership of seven acres which he alleged to have acquired the same through inheritance. He alleged that, the seven acres do not form part of the land that allegedly belong to the Respondent. He stated further that, the seven acres are in two different pieces of land. The first piece of land is bordered by; Luchanga Shija at the Eastern part, West Dalili Mmbuga, South Gambishi and Miami at the northern part. The second piece of his land has the following borders; East- Wande Mhahila, West Mkende Mahahila, South Gindu Malendeja and North Wande Mahahila. The Appellant stated expressly that the land has never been measured properly thus, the mentioned seven acres are mere estimations. After full trial, the trial tribunal granted the reliefs sought by the Respondent. Aggrieved by the decision of the trial tribunal, the Appellant preferred the appeal at hand on the following grounds: i. That, the trial tribunal erred in law and fact by his act to deliver judgement which is illegal and nullity in the eyes of the law ii. That the trial tribunal erred in law and fact by delivering a judgement relying on fake document which lacks any legal verification 2 iii. That the trial tribunal erred in law and fact by entertaining the matter which was not referred to Ward Tribunal for amicable settlement before going to the District Land and Housing Tribunal iv. That, the trial tribunal erred in law and fact by its act to include the pieces of land that does not belong or possessed by the Appellant herein v. That, the trial tribunal erred in law and fact by his act to deny right to be heard to the appellant neighbor whose lands were included in the case here in without their knowledge vi. That the trial tribunal erred in law and fact by conducting unfair trial The Appeal was argued by way of written submissions. The Appellant's submission was drawn and filed by Mr. Thadeus Fredrick Kivulunzi learned advocate and the Respondent's submission was drawn and filed by Mr. Mwigamba Ryatura learned advocate. In his submission, the Appellant's counsel abandoned the third ground of appeal. He then argued the 1,2, and 6 ground of appeal collectively, the 4 and 5 ground of appeal were also argued collectively. On the 1, 2 and 6 grounds of appeal, he challenged the judgement of the trial court for its reliance on documents alleged to be fake. He explained as to what made him consider the documents to be fake. In this he argued that, the documents were not signed by any witness and were not verified by the commissioner for oaths. He is of the view that, the trial tribunal ought to have not relied on those documents in its decision and that, such reliance made the decision to be unfair. 3 On the 4th and 5th grounds of appeal, he challenged the trial tribunal for determining the application which included a piece of land which belongs to persons who were not party to the case. He argued that, the land in dispute included part of the land that belongs to Appellant's neighbors who were not heard by the tribunal. He concluded that, since the Appellant's neighbours were not heard during trial then the decision of the trial tribunal is nullity for infringing the right to be heard on the part of the Appellant's neighbours. In his reply submission, the Respondent's Counsel challenged the Appellants' allegations that, the documents tendered by the Respondent were fake are not borne by court record. He argued that, it is a well established principle that, whoever allege must prove. Thus, it was the duty of the Appellant to prove that the documents were not genuine. The Respondent did not submit on the 4th and 5th ground of appeal. I have considered submissions by both parties and Court record. On the 1st, 2nd and 6th ground of appeal, the Appellant challenges genuineness of documents admitted as exhibit Pl and P2 for lack of endorsement by witnesses and for failure to be witnessed by the Commissioner for oaths. My perusal of Court record, I found the documents were properly signed by the witnesses. Pl was witnessed by four witnesses namely Ngwandu Nhondulu,Salu Mchungu, Gwilaja Mahungu and Makinga Shilinde. The four witnesses inserted their thumb prints in the document on 25th June 1978. Exhibit P2 was signed by all persons who attended the meeting by either inserting their thumb prints or ordinary signatures. It is an elementary principle of evidence that, whoever allege must prove as provided by section 110 and 112 of the Evidence Act, [Cap 6 R.E 2022]. 4 Ordinarily the standard of proof in civil cases is on balance of probability. However, allegations of forgery raised by the Appellant are criminal in nature. It is well established that, when criminal allegations are raised in civil proceedings, their standard of proof should be higher than the ordinary balance of probabilities. The Court of Appeal of Tanzania in the case of Twazihirwa Abraham Mgema vs James Christian Basil (Civil Appeal No. 229 of 2018) [2022] TZCA 91 (2 March 2022) cited a number of decisions in which the higher standard of proof of criminal allegations raised in civil proceedings has been stated. Among the cited decisions is the case of Rati la I Gordhankhai Patel versus Lalji Makasini [1957] EA 314 in which allegations of fraud were raised in civil proceedings. The Court of Appeal for East Africa held that; "Allegations of fraud must be strictly proved: although the standard ofproof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required." In the same vein, the Appellant who raised allegations of forgery in this matter, ought to have proved that the signatures of witnesses that appear in the two documents are not genuine as he alleged at a higher standard that balance of probabilities. Since neither of the witnesses have disputed to have signed the two documents the allegations by the Appellant ought to have been backed up by more reliable evidence such as expert opinion of a handwriting expert or other evidence that would have proved his allegations. Unfortunately, the Appellant did not avail the Court with any evidence that proves his allegations. 5 On the lack of endorsement by the commissioner for oaths the same shouldn't detain much this court since not all agreements are witnessed by commissioners for oaths. It should be noted that, the land in dispute has not been surveyed thus, its transfer does not need formal documents which require to be witnessed by a Commissioner for Oaths. In such circumstances, if the land exists and is indeed owned by the late Hibadu Gambuni, the documents tendered are capable of transferring ownership from him to the Respondent. Despite such findings, I have observed that evidence adduced before the tribunal was not sufficient enough to enable the tribunal to determine this matter properly without a visit to locus in quo. As observed by January Madafu, one of the wise assessors who sat in this matter, evidence in record establishes that, the seven acres that the Appellant claims to be his property, do not form part of the 234 acres subject of this appeal. This is evident from the boundaries of the respective pieces of land mentioned by the parties. The Appellant stated that, his land is in two pieces located separately, bordered by Luchanga Shija, Dalili Mmbuga, Gambishi and Miami for the first piece of land while the second piece of land is bordered by Wande Mhahila in two sides, Mkende Mahahila and Gindu Malendeja. The land that was a subject matter of Application No. 24 of 2022 before the District Land and Housing Tribunal for Nzega is bordered by Bulenya, Qibusa Mahemba, Gambishi, Andrea Kiasay. In short, evidence in record suggests that the seven acres alleged to be the property of the Appellant do not form part of the 234 acres. 6 In such circumstances, the trial tribunal ought to have visited the locus in quo to verify if the seven acres forms part of the land in dispute or not. Evidence in record suggests also that the alleged land has more occupiers than the Appellant. This is evident from the fact that the Appellant mentioned a number of persons to be his neighbours. It seems also the Respondent has abandoned his land for so many years. He stated expressly in his testimony that after being given the land in 1978, he started to use the same in the year 2005 which is approximately 27 years later. It is not clear, who was taking care of the land for the 27 years which the Respondent was not in actual occupation of the land. Evidence as to who was taking care of the land from 1978 to 2005 is necessary in order to establish that the alleged ownership of land by the late Hibadu Gambuni was not interfered at any point of time. I hold so because the late Hibadu Gambuni alleged via exhibit Pl that he acquired the land by clearing a bush. Such ownership is maintained by continuous occupation of the land. In case of abandonment of the land, any other villager may also clear and occupy the land. Where such occupation will not be challenged within 12 years, the occupier may be considered to have acquired ownership via adverse possession. In such circumstances, I am of a considered view that, it necessary to have the matter tried afresh so as enable parties to avail the tribunal with evidence that will enable it to determine the matter on merits. For that reason, I hereby return the matter to the trial tribunal for retrial through which visit to locus in quo to ascertain location of the three pieces of land mentioned by the parties in this appeal will be made. The tribunal will also receive evidence 7 as to the Respondent's occupation over the land since when it was bequeathed to him and any other evidence that will be availed by the parties. Given circumstances in this matter, I do not award costs. Dated at Tabora this 3rd October 2024 Z.D.MANGO JUDGE 8