BUNYWE BEDI NGALAMA

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000022413 OF 2024 BUNYWE BEDI NGALAMA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS HAMADI BAGILAMENSHI KIMATA .............................. RESPONDENT / DEFENDANT JUDGMENT KAHYOZA, J, The present appeal arises from land dispute No.50 of 2023 that was instituted before the District Land and Housing Tribunal for Kigoma at Kigoma herein the DLHT. In that matter the present Respondent had sued the Appellant for a parcel of land located at Bolelo hamlet in Bitale village, Bitale ward within the district and region of Kigoma. After a full trial, the DLHT found in favour of the present Respondent. The Appellant was not amused. He has now appealed to this court challenging the decision of the DLHT. He has presented a memorandum of appeal containing four grounds, which are reproduced here below: 1. That, the Chairperson of District Land and Housing Tribunal for Kigoma grossly erred in law and fact when she entertained the dispute that was instituted by the Respondent against Appellant while the Appellant has no locus standi. Hence nullity judgment and proceedings. 2. That, the District Land and Housing Tribunal for Kigoma grossly erred in law and fact when it declared the respondent as a lawful owner of the suit land while the same to prove his claim to the required standard. Hence ungrounded judgment. 3. That, the District Land and Housing Tribunal for Kigoma grossly erred in law and fact when it relied to the weak evidence of the Respondent and ignored the Appellant’s strong evidence that the Appellant’s family has been in possession of the suit land since 1974 to date. 4. That, could the trial Tribunal consider that the Respondent’s alleged to have bought the suit land from RUBENI PASKARI but the same failed even to tender the sale agreement and to bring a key witness from the family of RUBENI PASKARI. The same could not be declared as legal Page. 1 owner as it is against section 110 of the evidence Act, Cap 6 R.E 2022 and had a week evidence compared to the appellant. The brief facts of the case are as follows. That sometime in 1977, the Respondent bought the land in dispute from one Reuben Paskali, and that the purchase price was Tshs.32,000/-. It is further stated that the said land contained some palm trees. It is also stated that the Respondent has used the said land for more than 44 years without any interference until 2020 when the Appellant started trespassing onto the said land thus igniting the present matter. At the hearing, the Appellant was represented by Mr. Silvester Damas Songomba, learned advocate, while the Respondent appeared in person. As indicated above, the Appellant’s memorandum of appeal contains four grounds. Mr. Sogomba argued ground one separately, and then he argued the remaining three grounds together. With regard to the first ground, it was submitted by Mr. Sogomba that the DLHT erred in the first place to entertain the matter while the Appellant had no locus stand. According to Mr. Songomba, the Appellant never claimed that the land belonged to him. Instead, he told the DLHT tribunal that the land belonged to the late Bedi Ngalama who was his father. Mr. Sogomba insisted that this fact was supported by the very judgement of the trial tribunal, specifically at page 3, where it is stated that the Appellant told the trial tribunal that the land in dispute was allocated to his late father; and also, that this fact was supported by DW3, Dora Bedi Ngalama. It was Mr. Sogomba’s conclusion that the act of the DLHT deciding in favour of the Respondent amounted to condemning the entire family of the late Bedi Ngalama. Submitting on the second, third and fourth grounds, it was Mr. Sogomba’s stance that the DLHT failed to evaluate the evidence before it and thus arrived at a wrong decision. It was Mr. Sogomba’s further submission that before the DLHT, the Respondent did not prove his case because he failed to bring key witnesses including one Reuben Paskali, who it was alleged that it was the one who sold the disputed land to him. In addition, it was submitted by Mr. Sogomba that while the Respondent failed to prove his claim before the DLHT, the Appellant on the other had built a strong case by leading evidence to show that the suit land was allocated to the late Bedi Ngalama by the Village Government, way back in 1974. For these reasons, Mr. Sogomba urged this court to allow the appeal and reverse the decision of the DLHT. On her part, the Respondent totally resisted the appeal in that the DLHT rightly decided in his favour. He further submitted that he did not find it important to bring the seller to support his case because he has used the land for more that forty years. For those reasons, he urged the court to endorse the decision Page. 2 of the DLHT and dismiss this appeal with costs. I have carefully and dispassionately considered the rival submissions. I also have had an opportunity of carefully going through the record of the trial tribunal. I shall now proceed to consider whether the appeal is merited or not. I wish to start by considering the issue of locus stand raised in the first ground. I must say from the outset that this issue will not detain me because the record is straight. It is also worth noting that the Respondent did not respond on this issue, most likely, I believe, it is because he is a lay person, and the point involved is a technical legal issue. According to Mr. Sogomba, the Appellant had no locus standi to be sued simply because the land in dispute did not belong to him, but it belonged to the family. Seriously speaking, and I believe Mr. Sogomba too will agree with me that such a point ought to have been raised at the trial before the DLHT. It is not appropriate to raise it at this appeal stage. Since this point was not canvassed by the trial tribunal, I do not see how it can find its way to this appeal. In Richard Majenga vs Specioza Sylivester (Civil Appeal No. 208 of 2018) [2020] TZCA 227 (14 May 2020) the Court of Appeal while addressing a similar issue had this to say: “It is a settled principle of the law that at an appellate level the court only deals with matters that have been decided upon by the lower court”. Same position was also emphasized in Hotel Travertine Limited and 2 Others v. National Bank of Commerce Limited [2006] TLR 133 where the Court stated: "As a matter o f general principle an appellate court cannot consider matters not taken or pleaded in the court below to be raised on appeal. " See also James Gwagilo v. The Attorney General, Civil Appeal No. 67 of 2001. But even assuming it is properly raised, yet it cannot survive. Entertaining such an issue would be contrary to the very cardinal principle in litigation that parties are bound by their own pleadings. This principle is basic and fundamental because it sets a road map for a given case, but also it makes litigation predictable, lest parties would be taken by surprise and be caught off guard. See Mary Peter Otaru and Another vs African Banking Corporation (Tanzania) Ltd. and Another (Civil Appeal No. 395 of 2020) [2024] TZCA 511 (2 July 2024). See also Crescent Impex (T) Limited vs Mtibwa Sugar Estates Limited (Civil Appeal No.455 of 2020) [2023] TZCA 17501 (16 August 2023). Page. 3 In the present matter, the pleadings do not appear to support the contention by Mr. Sogomba that the land in dispute did not belong to the Appellant. From the Written Statement of Defence presented by the Appellant before the DLHT it is clearly shown that the Appellant alleged that at one stage the land in dispute was given to him following the passing on of his parents. This is reflected under paragraph 4(ii) of the written statement of defence where it is stated: “Baada ya Mzee Bedi kufariki, shamba hilo liliendelea kutumiwa na mke wa marehemu bi Steria Ndondoka.........Isitoshe kabla ya kifo cha Steria na mara baada ya kuzeeka sana familia, familia ilimpatia mjibu maombi haya eneo hilo kwa ajili ya kuliendeleza......” [ Bold supplied for emphasis]. The above excerpt clearly shows that at some point in time the land passed hands and came into the possession of the Appellant. The availability of this evidence from the pleadings totally erodes the issue of locus standi raised by the Appellant. It follows therefore that the Appellant was rightly sued in his capacity as an individual trespassing on the land in dispute. Therefore, the issue of locus standi has been illegally and improperly raised. For those reasons, I find no merit in ground one. It is accordingly dismissed. With regard to grounds two, three and four, it was submitted by Mr. Sogomba that the Respondent never proved that he had bought the suit land while on the other hand the Appellant had successfully proved that the land in dispute was initially allocated to his late father by the village government. Mr, Sogomba maintained that it was imperative for the Respondent among other things to call the seller as witness to support his case. The central wrangle here was whether or not the Respondent bought the suit land. The trial tribunal found this established and went ahead to decide in favour of the respondent. My scanning of the proceedings of the DLHT has revealed that the issue of sale of the suit land has very little or nothing at all to linger on. While the Respondent claimed to have purchased the suit land together with its palm trees there on, the Defendant maintained that he Respondent only purchased the palm trees and not the land. From these facts, the issue for determination was not whether there was a sale or not, rather, the issue was whether the Respondent bought both the land in dispute as well as the palm trees or not. In resolving this issue, the trial tribunal relied on section 2 of the Village Land Act, [Cap 114 R.E 2019] which defines land as including all that grow on it or above it. Under section two, land is defined as follows: "land" includes the surface of the earth and the earth below the surface, things naturally growing on the land, buildings and other structures permanently affixed to or under land and land covered by Page. 4 water”. With this definition in place, I also agree with the trial tribunal that the Respondent bought the land in dispute together with the palm trees on it. The argument that he bought only the palm trees is not only illogical but is also an unsound proposition. For these reasons, I find no merit in grounds two, three and four. These too are accordingly dismissed. Just in the upshot and from the foregoing discussion, I find this appeal wanting in merit. It is accordingly dismissed with costs to the Respondent. Right of appeal to the Court of Appeal is duly explained. Dated at KIGOMA this 10th of March 2025 . P. R KAHYOZA JUDGE OF THE HIGH COURT Page. 5