CIVIL APPEAL NO 297 OF 2023 BRAISON MPINGA VS THE REGISTERED TRUSTEES OF ROMAN CATHOLIC IRINGS DIOCESS NGINGULA PARISH

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA. (CORAM: KEREFU. 3.A.. MGONYA, 3.A And MLACHA. 3.A.^ CIVIL APPEAL NO. 297 OF 2023 BRAISON MPINGE....... ........ ....... ..... APPELLANT VERSUS THE REGISTERED TRUSTEES OF ROMAN CATHOLIC IRINGA DIOCESE (NG'INGULA PARISH........... ............ RESPONDENT (Appeal from the Decision of the Resident Magistrate Court of Tanzania at Iringa) (Mkasiwa PRM, Ext. 3urisdiction.^ dated the 26th day of August, 2022 in Extended Land Appeal No. 05 of 2021 JUDGMENT OF THE COURT 19* & 26* March, 2025 MLACHA, J.A.: The appellant, Braison Mpinge sued the The Registered Trustees of the Roman Catholic Church, Iringa Diocese (Ng'ingula Parish), the respondent, at the District Land Housing Tribunal for Iringa at Iringa (the DLHT), in Land application No. 103 of 2015, seeking to be declared the lawful owner of a piece of land measuring two (2) acres which is currently under the control of the respondent, a permanent injunction against the respondent in respect of the suit land, general damages TZS. 5,000,000.00 and costs. The respondent denied the claims. The DLHT found for the respondent and dismissed the application. His first appeal to the High Court in Extended Jurisdiction Land Appeal No. 05 of 2021 was not successful, hence the appeal now before the Court. Briefly stated, the facts leading to this appeal can be presented as follows: The appellant (PWl) stated at the DLHT that he was given the land by his mother, Cecilia Mugwilanga (PW2), in 2001 as a gift. He planted pine trees in 2006 and enjoyed a peaceful occupation up to 2012, when the respondent trespassed to it. The respondent claimed to have bought it from the appellant's father, Bernard Mpinge (PW3). He resisted because, the land did not belong to his father. A dispute arose leading to the filing of the case. PW2, PW3, Saul Amali Mpinge (PW4) and Prisca Mpinge (PW5) appeared at the DLHT to support the evidence that the land belongs to the appellant. PW3 denied to have sold the land to the respondent. He added that, following this dispute, the family has shifted to the Lutheran Church. The respondent's case is built on two witnesses and the sale agreement, exhibit D2. It was the evidence of Jonifasi Chota (DW1), the Chairman of Ng'ingula Parish Council that, PW3 approached Fr. Moses, the Parish Priest, in 2009, saying he needed to sell his land. Fr. Moses (a European), called him and Yohana Kileva, the Secretary to the Parish Council for a discussion. They discussed with PW3 and reached an agreement to buy the land for TZS 500,000.00 which was duly paid. PW3 wrote a document on 16/7/2009, exhibit D2, stating that he had sold the land to the respondent. They passed the document to the Village Chairman on 20/7/2009 for endorsement. The respondent remained with the land peacefully up to 2014 when the appellant (the son), appeared claiming that, the land is his, alleging to receive it, as a gift from his mother in 2001. He needed it back. DW1 associated this u- turn of events with the transfer of Fr. Moses but had confidence on exhibit D2. They resisted because they had confidence that they had bought the land lawfully. Fr. Nicodemus Kitalila (DW2), the assistant Parish Priest corroborated the evidence of DW1. His evidence was that, PW3 had financial problems. He approached the Parish Priest to sell his land to raise funds to solve his problems. They discussed and agreed to buy the land as aforesaid. He stressed that, the Church kept exhibit D2 to evidence the sale. Both, the DLHT and the High Court did not see justification in the claim by the appellant which was rejected. They discredited the appellant and his witnesses. They were impressed by the evidence of DWi, DW2 and exhibit D2. They found as a fact proved that, the land was sold by PW3 to the respondent making the claim of the appellant baseless. Undaunted, the appellant has come to this Court on a second appeal. The appellant lodged a memorandum of appeal with nine (9) grounds of appeal. They can be paraphrased to read as follows: one, that, High Court failed to evaluate the evidence leading to failure of justice; two, that, the High Court failed to evaluate the evidence on record leading to unfair decision; three, that, the evidence adduced at the trial court was weak, contradictory and unreliable; four, that, the Parish Priest had no locus standi to transact on behalf of the respondent; five, that, the respondent did not call a material witness; six, failure by the High Court to find that there were contradictions between the evidence adduce by the witnesses and the Written Statement of Defence; seven, there was no evidence that PW3 is the one who sold the land to the respondent; eight, the High Court erred in law in finding that the respondent is the lawful owners of the land and; nine, that the DLHT and the High Court erred in law to base their decisions on exhibit D2, which had no evidential value. The appellant was represented by Mr. Marco T. Kisakali, learned advocate, whereas the respondent was represented by Mr. Shaba A. Mtung'e, also learned advocate. When we invited Mr. Kisakali to address the Court on the grounds of appeal, he opted to argue grounds 1, 2, 3, and 6 conjointly and other grounds separately. Submitting on grounds 1, 2, 3, and 6, which carry the complaint of failure to evaluate the evidence and contradictions in the respondent's case, the learned counsel contended that, there was good evidence from the appellant and his witnesses showing that the appellant got the land from his mother as a gift. This evidence was corroborated by PW2 and PW3. He discredited exhibit D2, saying that, it suffers two major defects, among others. One, it has the address of PW3 as if it was a letter. Two, it lacks the description of what was sold. Based on this understanding, he urged the Court to discredit exhibit D2 and the evidence of DW1 and DW2 and find that there was good evidence to prove that, the land belongs to the appellant. When probed by the Court on whether the application filed by the applicant at the DLHT had a description of the suit land, as required by order VII rule 3 of the Civil Procedure Code Act, Cap. 33 R. E. 2019 (the CPC), he conceded that, it did not give a proper description of the suit land, sufficient to identify it, as required by the law. That notwithstanding, the learned counsel contended that, the appeal was still maintainable because the appellant had strong evidence to prove that the land belonged to him. Further, there is an illegality in exhibit D2 which defeats the respondent's case. He urged the Court to allow the appeal with costs. When Mr. Mtung'e was invited to respond on whether the application which was filed at the DLHT complied with the requirements of Order VII rule 3 of the CPC, he conceded that, there was a none compliance with the law but contended that, this omission could be cured by witnesses during trial. He added that, the appellant did not give the description through his witnesses. Despite this concession, the learned counsel urged the Court to find that, there was good evidence to prove that the respondent bought the land in 2009. He beseeched the Court to dismiss the appeal with costs. We think we should examine this area first because it has a serious effect in the appeal before the Court. The description of the suit land appearing at paragraph 3 of the application, page 8 of the record of appeal is as follows: "3. Location and address of the suit premises/land Ng'ingula Village/KHolo District/Wasengele Street Iringa Municipality, Iringa/' The follow up question now is whether this description was sufficient to identify the suit land as required by Order VII rule 3 of the CPC, which reads: "Where the subject matter o f the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and, in case such property can be identified by a title number under the Land Registration Act, the plaint shall specify such title number," (Emphasis added) This provision has been interpreted by this Court in a number of cases including the case of Kessy Mkaramba and 6 others vs Hassan Mkamila and 31 Others, Civil Appeal No. 471 of 2021 [2024] TZCA 1101 (14 November 2024); TANZLII, Martin Frederic Rajab v. Ilemela Municipal Council and Another, (Civil Appeal No. 197 of 2019) [2022] TZCA 434 (18 July,2022); TANZLII and Maria Amandus Kavishe v. Norah Wazir Mzeru (Administratrix of the estate of the late Silvanus Mzeru) and Another, (Civil Appeal No. 365 of 2019) [2023] TZACA 31 (20 February, 2023);TANZLII. In Kessy Mramba (supra) we stated as follows: f\ „ a pfaint that founds a claim on an immovable property must be descriptive enough to sufficiently identify the property in dispute in a manner that will allay any possibility o f mistaken identity. This would include a statement o f the landmarks in the boundaries and neighbouring features, if any, or names of the hoiders of the pieces of land that surround the disputed iand. In a fitting case, especially where the dispute is on a registered land, specification of the title number o f the land in dispute is of invaluable importance," (Emphasis supplied) We made similar observations in Martin Feredick Rajabu (supra) where we stated: "From what was pleaded by the appellant, it is glaring that the description of the suit property was not given because neither the size nor neighbouring owners of pieces of iand among others, were stated in the plaint This was not proper and we agree with the learned trial Judge and Mr. Mrisha thaty it was incumbent on the appellant to state in the plaint the description o f the suit property which is in terms o f the dictates o f Order 7 rule 3 o f the Civil Procedure Code [CAP 33 R.E 2019]/' (Emphasis supplied) Reading from the above cases, it is obvious that, the description given at paragraph 3 of the application fail short of the legal requirements. Apart from the fact that, it did not state the physical location, size and neigbouring people, it is confusing on whether the land is in Ng'ngula Village Kilolo District or Wasengele Street, Iringa Municipal. We think Kiiolo District and Iringa Municipal are two distinct areas. The applicant was therefore not clear of what he claimed. Next, we will move to examine the effect of none compliance to Order VII rule 3 of the CPC. The learned counsel for the respondent appeared to suggest that it is not fatal. He argued that, that the details could be provided at a later stage by witnesses. With respect, we don't think this is the import of the law and the above authorities. The position of the law is that, a party must give a description enough to identify the suit premises in the pleadings not later during the trial. Generally, in civil cases, the burden of proof lies on the person who alleges anything in his or her favour. This is the import ofsection 110 (1) and (2) of the Evidence Act, Cap 6 R. E. 2019. In acivilcase like this one, the standard of proof is on the balance of probabilities, which simply means that, the court will sustain such evidence which is more credible than the other on a particular fact to be proved. See Maria Amandus Kavishe (supra) which followed our earlier decisions in Anthony Masanga v. Penina Mama Ngesi and Another, (Civil Appeal No. 118 of 2014) [2015] TZCA 556 (18 March, 2015); TANZLII and Hamza Byarushengo v. Fulgence Manya & 4 others, Civil Appeal No. 33 of 20i7(unreported). The burden of proof never shifts to the adversary party until the party on whom the onus lies, discharges his duty. Neither can it be diluted on account of weaknesses of the opposite party's case. See Paulina Samson Ndawanya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017. A party is therefore, as a matter of law and principle, be bound by his pleadings upon which he is supposed to lead evidence to discharge his burden of proof. Now, if the pleadings do not contain sufficient information to establish the claim, there is no way in which a party can discharge his burden of proof so as to enable the opposite party to bring his defence. In the case at hand, the appellant was supposed to plead facts describing the suit land as require by Order VII rule 3 of the CPC, but he did not do so as intimated above. The facts which he was supposed to plead could be the basis upon which he could build his case. The absence of those facts means that, he had no basis upon which to build his case. It also means that he did not discharge his burden of proof. Failure to discharge the burden of proof means that the respondent had no base upon which to bring his defence in the case. In view of this finding, we see no reason to discuss other grounds of appeal. The appeal is found to be baseless and dismissed with costs. DATED at IRINGA this 26th day of March, 2025. R. J. KEREFU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 26th day of March, 2025 in the presence of the Mr. Rutebuka Samson Anthony, holding brief for Mr. Marco J. Kisakali, learned counsel for the Appellant and Mr. Shaba Mtunge learned counsel for the Resp -ue copy of the original. DEPUTY REGISTRAR COURT OF APPEAL