AUGUSTINO KIRITA new

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA

AT BABATI LAND APPEAL NO. 21254 OF 2024 (Arising from Land Application No. 27 of2023 in the District Land and Housing Tribunal for Hanang' at Katesh.)

AUGUSTINO KIRITA APPELANT

VERSUS GITANGW'ALA MAJALDA RESPONDENT

JUDGMENT 27th Dec, 2024 & 24th Jan, 2025 MWIHAMBI, J.: This appeal arises from judgment of the District Land and Housing Tribunal of Hanang' at Katesh (the trial Tribunal) in Land Application No. 27 of 2023 involving ownership of a 5-acre piece of land located at Dajameda Village within Hanang' District in Manyara Region (dispute land), whereby the trial Tribunal on 1st July, 2024 entered a judgment in favour of the respondent, Gitangw'ala Majalda. The brief facts of the matter are as gathered from the parties' pleadings are that, the appellant, Agustino Kirita, alleged to have purchased the dispute land from the respondent in 1999 and started farming activities 1 therein. That in 2018 a neighbour, Onna Ng'adi, encroached the dispute land and the matter was resolved at the hamlet level with the respondent being one of the witnesses. That in 2023 the respondent invaded the dispute land and started farming causing the appellant to institute the matter in Laghanga Ward Tribunal. The Ward Tribunal advised the respondent to leave the dispute land to the appellant "unaonaje kama utaacha eneo hili ienye mgogoro kwa Miaiamikaji kwani Mwenendo unaonesha miishauziana...”, on the respondent's refusal the Ward Tribunal allowed the matter to be referred to the trial Tribunal for further legal decisions and consensus. The respondent did that and the trial Tribunal decided in his favour. The

appellant is dissatisfied with the decision hence this appeal with two grounds as follows: 1. That, the trial Tribunal erred in law and fact for failure to evaluate properly the evidence before it; and 2. That, the trial Tribunal erred in law and fact for delivering judgment in favour of respondent while the respondent failed to prove his case on balance of probabilities. This appeal was argued by way of written submissions as preferred by the parties. The appellant enjoyed the service of Mr. Tadey Lister, learned 2 Advocate while the respondent was represented by Mr. Mohamed Chondo, the learned Advocate. In the written submission in support of the appeal, filed on 12nd December, 2024, Mr Tadey Lister started by emphasising on the duty of court to evaluate the evidence before it arriving at a decision, as failure to do so can amount to miscarriage of justice, and referred this Court to Saka Atuyeye & Others v. Ashamu (1987) LLJR-SC and Stanslaus Rugaba Kasusura and Another v. Phares Kabuye [1982] TLR 338. He further argued that the trial Tribunal failed to properly evaluate evidence hence reaching an erroneous decision, as the appellant proved ownership of the dispute land while the respondent had nothing tangible to prove his ownership of the dispute land. That the trial Tribunal's reason to depart from assessors' opinion was wrong; the reason being the sale agreement not

having blessings of local leaders (village) while there is no law that puts a mandatory requirement on that. Responding to appellant's submission on the first ground, Mr. Mohamed Chondo argued that the trial Tribunal decision was sound, fair and in accordance with the law. Acknowledging the burden of proof on the party asserting existence of facts, the learned advocate argued that the respondent discharged this burden by presenting sufficient and credible 3 evidence to prove ownership of the dispute land. Mr. Chondo invited this Court to look at the case of Anthony M. Masanga v. Penina (Mama Mgesi) & Lucia (Mama Anna) [2008] TLR 255 in which the Court of Appeal emphasised that a trial court must evaluate the evidence holistically rather than focusing on minor inconsistencies, and that the trial Tribunal adhered to this. Mr Chondo further argued that the appellant failed to produce sufficient evidence to substantiate their claim and since according to Hemed Said v. Mohamed Mbilu [1984] TLR 113 failure of a party to call material witnesses or produce evidence to support their case allows the court to draw adverse inference against them, then the trial Tribunal's decision against the appellant was justified. In relation to the second appeal ground, Mr. Tadey Lister submitted that the trial Tribunal rendered a judgment in favour of the respondent who failed to prove his case on the

balance of probability as required by section 110 and 111 of the Law of Evidence [Cap. 11 R:E 2019] (sic), thus making the judgement an erroneous one. That in the case of Attorney General and two Others v. Eligi Edward Massawe and Others, Civil Appeal No. 86 of 2022 (unreported) it was stated that the matter must be decided in favour of the one (party) with heavier or stronger evidence. He further argued that the appellant adduced all necessary evidence, that is 4 HATI YA MAUZIANOzvd HATI YA USULUHISHI, while the respondent provided mere words. Mr Tadey Lister cemented his argument by the case Paulina Samson Ndawanya v. Theresia Thomas Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) where the Court of Appeal held that "The burden ofproof never shifts to the adverse party until the party on whom the onus Ues discharges his burden and that the burden of proof is not diluted on account of the weakness of the opposite party's case." The learned advocate concluded his submission with a prayer for this Court to allow the appeal with costs. On the other hand, Mr Mohamed Chonjo arguing against the second appeal ground submitted that this ground is unfounded because according to the principle enshrined in section 3 (2) (b) of the Evidence Act [Cap. 6 R.E. 2002] a party who discharges their burden of proof on a balance of probability must succeed and in this case

the respondent's evidence was stronger and more credible than the appellant's and since the former's evidence outweighed the latter then the trial Tribunal was entitled to decide in favour of the respondent, which means the principle was applied properly. He further argued that the trial Tribunal rejected the appellant's evidence on the basis of the case of Hemed Said (supra) which provides that where a party's evidence is weak or improbable the court is entitled to reject it and accept the evidence of the opposing party. The learned 5 advocate summed up with a prayer for this Court to dismiss the appeal with costs for lack of merit. There was no rejoinder from the appellant. The main issue for determination in this case is on ownership of the dispute land; whether it is the appellant or the respondent who is a lawful owner of the same. I find it convenient to discuss the two appeal grounds together. In arguing their cases both learned advocates referred this Court to sections 110 and 111 of the Evidence Act [Cap. 6 R.E. 2002]. For easy of reference the sections read: 110. (1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden ofproof Ues on that person.

111. The burden ofproof in a suit proceeding Ues on that person who would fail if no evidence at all were given on either side." These provisions have been applied and elaborated in a number of cases; in Martin Fredrick Rajab v. Ilemela Municipal Council and Synergy Tanzania Company Limited, Civil Appeal No. 197 of 2019 the Court of Appeal stated that it is a cherished principle of law that, generally in civil cases, the burden of proof lies on the person who alleges anything in his favour and this is the genesis of the provisions of section 110 of the 6 Evidence Act (Cap. 6 R.E. 2002], Therefore, in civil proceedings, the Court of Appeal stated, a party who alleges anything in his/her favour also bears the evidential burden 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. The Court referred other cases; Anthony Masanga (supra), Godfrey Sayi v. Anna Siame (as legal representative of the late Mary Mndolwa), Civil Appeal No. 45 of 2017 and Hamza Byarushengo v. Fulgencia Manya and four others, Civil Appeal No. 33 of 2017 in which 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. In

addition, Lord Hoffman in Re B [2008] UKHL 35 (cited in Anthony M. Masanga (supra) defining the term balance of probabilities stated that: "If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt\ the doubt is resolved by a rule that one party or the other carries the burden ofproof. If the party who bears the burden ofproof fails to discharge 7 it, a value of O is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened." In the case at hand, it is the respondent who, in the trial Tribunal, alleged to be a lawful owner of the dispute land, therefore I will accordingly be guided by the above cited cases, in determining as to whether the respondent discharged the burden of proof in the standard provided by law to the extent that the trial Tribunal entered a judgment in his favour or whether the trial Tribunal erred in law and fact in so deciding as the appellant argues. Being a first appellate court therefore with a duty to reappraise the evidence, (see Hassan Mfaume v. R. [1981] TLR 167) this Court will analyse the

documentary and oral evidence adduced by each party in the trial Tribunal beginning with what was submitted by the respondent that; the dispute land is a 51/4 acre piece of land located at Dajameda Village within Hanang' District, it borders Onna Ng'adi in the east, Boay Ghambarop in north, Awe Ami in west and Samweli Ng'adi in south. That the dispute land is a lawful property of the respondent who has been in peaceful possession and using the same for farming activities from 1987 for almost 34 years (to the submission date). That the dispute land was given to the respondent by his father, Majalda Giderabuda, when the 8 respondent started to rely on himself. That in 2018 when he was in cattle camping in Mbeya he received a call from his wife that someone wants to lease a piece of land for farming, the respondent gave his approval hence an oral two years lease to the appellant; 2018 to 2020. That in the process of farming the appellant "unintentionally" entered a farm of neighbour, Onna Ng'adi, and the respondent had to come from Mbeya to show and clarify the leased farm boundaries and participate in reconciling the appellant and Onna Ng'adi. That in 2020 the appellant failed to pay rent but on his request the respondent allowed him to harvest his planted crops. In 2021 the respondent again allowed the appellant to farm and harvest though no rent was paid and as the respondent

put it"shida sasa alipovuna hakunilipa fedha yangu na wa/a nikimpigia simu yangu hapokei..." Therefore, in 2023 the respondent decided to farm the dispute land himself and it is when the dispute arose. The respondent had three witnesses including himself; Catharina Kasemba (Sm2) his wife and Gaudenze Gidamengu (Sm3) a resident in the village where the dispute land is located, these witnesses' testimonies corroborated the evidence adduced by the respondent in various aspects. The testimony of Sm2 corroborated with the respondent's in relation to ownership and size of the dispute land, how the appellant entered the 9 dispute land, lease duration, appellant's failure to pay the agreed rent and the subsequent take-over by the respondent. Sm2 added that the appellant paid TZS. 300,000/- as rent for the two years and there was no any document because, as she put it ''tuliaminiana" Sm3 also corroborated evidence of the respondent in relation to ownership of the dispute land and added that he knows the dispute farm as from 2000 to 2003 he did maize farming therein on lease basis. That the respondent once informed him that in 2018 to 2019 he had leased the dispute land to a friend, who was subsequently known to be the appellant. The question that may arise here is between Sm3 and the appellant who was telling the truth; Sm3 who said the dispute land belongs to the respondent and he was

himself (Sm3) a tenant in that land (2000 - 2003) or the appellant who claimed that he bought the farm in 1999 and has been solely using it ever since. Because it means the respondent leased the dispute farm to Sm3 while he had already sold the same to the appellant and the appellant was using it. This Court observed that the appellant, in cross examination, did not press Sm3 to clarify on this. On the other hand, the appellant opposed the argument that he was a tenant in the dispute land, claiming that he bought 4 acres from the respondent and 1 acre from one Gidagorjo Majalda and have been farming io on the same ever since and has never left it idle. To prove his ownership, the appellant submitted HATI YA MAUZIANO, a sale agreement on the 4 acres between himself and the respondent and a sale agreement on 1 acre between himself and Gidagorjo Majalda. This Court has observed that the sale agreement between the appellant and respondent on the 4 acres, dated 4th February, 1999 and which had no witness on part of the buyer (appellant), has different description of the dispute land in terms of its location as compared to what the respondent provided, except for the west side. According to the tendered agreement the farm borders Ghabari Mara in the east, in the north it borders Gidagorjo Majalda (and later the name Onna Ng'adi was added in the agreement), Awe Ami in west and Boay

Gambarkta in south. However, in his written reply to the trial Tribunal the appellant agreed with the location and borders provided by the respondent; page 3 of the reply submission reads "Kwamba, sehemu ya aya ya 3 ya Maombi ya Mleta Maombi nakubaliana nayo kuhusiana na hoja ya mahala eneo kata na WHaya UHpo... "The aya ya 5 that is referred to is where the respondent stated the location, borders and neighbours of the dispute land as mentioned hereinabove. In addition, according to proceedings of the trial Tribunal at page 9 the appellant orally submitted another different version on description of the ii dispute land that "... Na mipaka yake nisawa kama alivyotaja Sml lakini kusini yupo Samwei Ng'adi mdogo wake aitwaye Gidagojo MajaIda ambae aiikuwa na eneo la eka moja..." while "his kusini" in the tendered agreement had Boay Gambarkta and not Samwel Ng'adi. The second sale agreement relating to the 1 acre is in form of a letter from Gidagorjo Majalda to Augustine Kiritha dated 5th March, 1999. It mentions individual names as borders of the farm as follows: "...Mipaka ya shamba 1. Kitangola Majalda 2. Onna Ng'adi 3. Bayanga Shing'adedi 4. Gidagorjo Majalda. persons are listed as sale witnesses; Shirima A.N.S and Kitangola Majalda. This Court has also observed that in both sale agreements there is no involvement of village or hamlet leaders. Although Mr. Tadey Lister

argued that there is no any law that puts a mandatory requirement for a sale to have "blessings of local leaders", caselaw speaks differently. In Bakari Mhando Swanga v. Mzee Mohamedi Bakari Shelukindo and Others, Civil Appeal No. 389 of 2019 Court of Appeal of Tanzania at Tanga (unreported) one of the arguments was that the village council was supposed to approve the (land) sale agreement before being acted upon, the Court of Appeal supported this and stated that: 12 "... even if we assume that the purported sate agreement was valid... then the same was supposed to be approved by the village council as correctly submitted by the second respondent, which in our view is in compliance with section 142 (1) of the Local Government (District Authorities) Act, [Cap. 287 R.E. 2002] which provides; village council is the organ in which is vested all executive power in respect of all the affairs and business of a village. " The Court of Appeal went on to rule that under normal circumstances, it was expected for the appellant after he had executed the purported sale deed to present the document to the relevant village council to get its blessings, however, the appellant did not comply with this requirement. Similarly, in this case the appellant was supposed to get village blessings and the same could have provided crucial evidence in proving the appellant's alleged ownership of the

dispute land, but the appellant did not see it that way. In further proving ownership of the dispute land, the appellant in the trial Tribunal testified, in page 9, that in 2018 his neighbour Onna Ng'adi, encroached the dispute land and the matter was reported to Hamlet Chairman (Augostino Languu) who instructed the respondent to appear and show the boundaries as he (respondent) was the one who sold the land to the appellant. That: 13 "...mwaka 2018 ndipo mama Onna Ng'adi upande wa magharibi aliniingilia kwenye shamba na ni/itoa taarifa kwa m/kitongoji Augostino Languu aiitoa mae/ezo kwamba sml afike Hi aonyeshe mipaka hatisi. AHagizwa aje sml kama muuzaji wa shamba hili kwangu." (Emphasis is mine) The highlighted words show another difference between what is provided in HAT! YA MAUZIANO and the evidence adduced orally by the appellant. According to HATI YA MAUZIANO'Matna Onna" is in the north side and not the west side (magharibi), and no explanation was provided on this. The appellant also tendered copy of the boundary dispute mediation document; HATI YA USULUHISHIwhich reads: "Yahusu uwekaji mipaka ya shamba baina ya Onna Ng'adi na Agustino Kirita" "Watajwa majina hapo juu wamekubaiiana kunyoosha mipaka ya maeneo ya mashamba yao kwa kuchimbika katani. Zoezi hili Hmefanyika mbete ya Mwenyekiti wa Kitongoji kushirikiana na wazee wafuatao na sahihizao 1. Areray Ng'adi 2. Petro

Shauri 3. Boay Anunaay 4. Mathayo Mugeja 5. Gitang'wala Majalda. (thumb printed). Sahihi za wenye mashamba a. Onna Ng'adi b. Agustino Kirita (thumb printed). Basi mipaka ya shamba hili iheshimiwe kama Hivyoandikwa hapo juu. Mipaka ya shamba hili imewekwa chini ya Mwenyekiti wa Kitongoji cha Dajameda ieo tarehe 15.2.2018 (signed and official sea! put)." 14 With due respect this Court does not see how this document can be taken as proof that the respondent participated as a seller, witness or the owner, or how does it prove that the appellant is the actual owner and not an occupant of the dispute land, on lease basis, at that specific time. To clarify and cement his argument the appellant could have presented the elder(s) mentioned in HATI YA USULUHISHI', Areray Ng'adi, Petro Shauri, Boay Anunaay or Mathayo Mugeja to testify on his side in the trial Tribunal. They would have testified, among other things, participation of respondent as witness and not owner of the land, but for reasons best known to himself, he failed to bring them. Alternatively, he could have presented the Hamlet Chairman who allegedly called the respondent to come from his cattle camping in Mbeya to show the boundaries, among other things, the Hamlet Chairman would have told the trial Tribunal in which capacity did he call the respondent; a mere witness, a previous or current owner, but the appellant did not

call him and no explanation was provided. To the contrary the appellant presented one witness; Gidabasko Una (Dw2), who worked for the appellant in the dispute land from 2005 to 2022 and whose testimony was almost a replica of the appellant's. On completion of the hearing, assessors of the trial Tribunal had different opinion with the Chairman. Joseph Reuben Mduma was of the view 15 that according to the adduced evidence the appellant had already purchased the disputed land from the respondent therefore the trial Tribunal should grant ownership to him. Adelaida W. Ngomuo provided a summary of the adduced evidence somehow differently from what was actually adduced. That: "Nimesikiiiza Shauri hili pande zote mbiii tangu mwanzo hadi mwisho... Shahidi Gaudensi Gidamengu (45) aiieieza baraza kuwa yeye ndiye aiiyekuwa mwangaliziwashambahiio tangu2020hadi2023. AiiombwanaAgustino Kirita. Gidang'wala aiivamia shamba hiio 2024... "(emphasis is mine) In actual fact Gaudensi Gidamengu is Sm3 who testified for the respondent. The one who worked for the appellant is Gidabasko Una who testified that he worked for the appellant in the dispute land from 2005 to 2022 and not 2020 to 2023. Also, according to the appellant, the farm was invaded in 2022 and not 2024. The assessor then concluded to opine that the respondent and his witnesses failed to provide sufficient evidence on the ownership and

this failure expressly shows that a lawful owner of the dispute land is the appellant therefore the trial Tribunal should grant to him ownership of the 4 acres. On the other hand, the trial Tribunal Chairman had a different opinion, the reasoning being failure of the appellant to contend the evidence adduced by the respondent's side and non-involvement of relevant 16 authorities on sale agreement tendered by the appellant with no reason provided. The trial Tribunal judgment in page 5 stated: "... Na ni katika had hiyo ambayo ni kieieiezo SI hakuna mahaii popote ambapo Serikaii au ofisi yoyote ya eneo Hipohusika na mjibu maombi hana sababu aiiyoitoa ni kwanini hawakwenda hata kwa mwenyekid wa kitongoji kupata baraka za mauziano ya eneo husika. Ninaheshimu maoni ya wajumbe iakini kwa tofauti ya hoja hizo ninaona mieta maombi amethibitisha madai yake ya ardhiyenye mgogoro..." In his submission the appellant had argued that the respondent failed to prove before the trial Tribunal that he was a lawful owner of the dispute land by providing mere words while the appellant produced documentary evidence to prove otherwise. On the contrary, this Court is of the view that the respondent's evidence was consistent and together with his witnesses they have proved that the respondent is the owner of the dispute land. On the other side the appellant's failure to describe location of the

dispute land properly and consistently which may be translated as not knowing the dispute farm, the non-involvement of village authorities in purported land sale agreement and the unsubstantiated argument that the respondent participated in the boundary dispute (appellant/Onna Ng'adi) as a witness and not owner all add up to the conclusion that the appellant failed to discharge the burden that was shifted to him to prove 17 ownership of the dispute land. In other words, the evidence adduced by the respondent outweighs that of the appellant. In view of what I have endeavoured to discuss, this Court is satisfied that the respondent did prove ownership of the dispute land on the balance of probabilities and I find no cogent reasons to fault the impugned trial Tribunal judgment. I therefore find the appeal not merited and I hereby dismiss it with costs. DATED at BABATI this 24th day of January, 2025. N.J. MWIHAMBI

JUDGE COURT: Judgment delivered today, 24th day of January, 2025, in the presence of the appellant and the respondent. B/C Miss Fatina R. Haymale (RMA) present. Right of appeal explained. N.J. MWIHAMBI

JUDGE 18