LUGATA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 17876 OF 2024 NG'OGELA LUGATA................................................................... 1st APPELLANT NTAMBU LUGATA...................................................................... 2nd APPELLANT SOJI LUGATA........................................................................... 3rd APPELLANT MBUKE JID IK U ......................................................................... 4™ APPELLANT KULIKA KILOYA........................................................................ 5™ APPELLANT NZELA M U SA .............................................................................6™ APPELLANT PINDU G O LA ............................................................................. 7th APPELLANT NYAMATE NALAMBO.................................................................8™ APPELLANT VERSUS MADUHU KACHELI (Administrator of the Estate of the late Kacheli Lugata)............................................... RESPONDENT JUDGMENT 4/ 11/2024 & 22/ 11/2024 ROBERT. J:- The eight appellants named above, being dissatisfied with the decision of the District Land and Housing Tribunal (DLHT) for Mwanza in Application No. 235 of 2020, filed this appeal. At the DLHT, the respondent, Maduhu Kacheli, suing as the administrator of the estate of the late Kacheli Lugata, i claimed ownership of 18 acres of the disputed land located at Isolo Village, Magu District, Mwanza Region. The DLHT ruled that the appellants were trespassers on the 15 acres, while 3 acres were excluded and awarded to the first appellant. Dissatisfied with the decision, the appellants filed this appeal armed with three grounds of appeal as set out in the petition of appeal. For clarity, the grounds of appeal are summarized as follows: 1. That the District Land and Housing Tribunal erred by failing to recognize that the respondent's application did not provide a proper description o f the suit land. 2. The District Land and Housing Tribunal misapprehended the evidence and erroneously shifted the burden o fproof to the appellants. 3. The DLHT failed to properly analyze and evaluate the evidence on record. Hearing proceeded by way of written submissions. Submitting in support of the appeal, Counsel for the appellant, Mr. Venance Kibulika, opted to argue the first ground of appeal separately while the second and third grounds of appeal were argued together. Submitting on the first ground, Mr. Kibulika argued that the DLHT erred by entertaining a suit where the property in dispute was not properly described as it doesn't show demarcations and neighborhood around the suit property. He contended that the respondent failed to meet the mandatory requirements of Order VII Rule 3 of the Civil Procedure Code, which obligates a plaintiff to describe land in dispute in a manner sufficient for identification. The appellants further argued that this omission led to ambiguities in determining the actual boundaries of the property. Counsel for the respondent, Mr. Maligisa Sakila, countered that the property description provided in the pleadings and during the oral testimony was adequate to identify the land in dispute. He argued that the appellants were well aware of the property in question during trial. Order VII Rule 3 of the Civil Procedure Code requires that a plaintiff's pleadings contain a clear description of the disputed property sufficient for identification. In Olorubare Nginyu v. Kilempu Kinoka Laizer, Civil Appeal No. 416 of 2021 (cited by the Appellants), the Court underscored the importance of proper description to avoid ambiguities. Upon review, the pleadings and proceedings at the DLHT reveal that the respondent described the property as a piece of land measuring 18 acres situated at Isolo village in the District of Magu, Mwanza region. Additionally, 3 during oral testimony, the respondent provided further clarification on the individuals neighboring the property's boundaries. This Court is of the firm view that, the pleadings and evidence on record, particularly the respondent's testimony describing boundaries, sufficiently identified the disputed land. While the appellants argue that this description was inadequate, they failed to demonstrate any specific prejudice caused by the alleged insufficiency. The DLHT's decision, however, contains a clerical error where it erroneously referred to the land trespassed by the appellants as thirteen acres in words but correctly indicated the actual size in numbers as "(15)." It should be noted that, the respondent's pleadings and testimony describe the disputed land as comprising eighteen acres, with three acres excluded from the claim. This leaves the claim for fifteen acres. This court, therefore, finds that the DLHT adjudicated the correct acreage of the disputed land, being fifteen acres, and the clerical error in stating thirteen acres in words has no bearing on the final outcome. It is settled law that clerical or typographical errors that do not affect the substantive rights of the parties can be disregarded, provided the judgment, when read as a whole, conveys the correct conclusion. In Hamisi Ally v. Hassan Rashidi [1984] TLR 147, the Court emphasized that such errors do not vitiate the decision if the judgment's essence remains intact. This court observes that such a discrepancy is a minor typographical error that does not affect the substance of the decision. The tribunal's findings and reasoning clearly align with the description of the land as fifteen acres throughout the pleadings and evidence. As such, this court holds that the error does not warrant interference with the impugned judgment. Thus, this ground lacks merit. On the second and third grounds, Mr. Kibulika submitted that the trial tribunal failed to properly analyze and evaluate the evidence on record. He contended that the respondent did not substantiate his claim of ownership of the suit land on a balance of probabilities, as required by law. Specifically, he highlighted inconsistencies between the respondent's application and his oral testimony. According to the appellants, the respondent averred in paragraph 6(ii) of his application that his late father, Kacheli Lugata, acquired fifteen acres of the suit land through purchase from Lucas in 1964 and an additional two acres from James Kapipi. However, the respondent provided no documentary evidence to support this alleged purchase. Instead, during trial, the respondent testified that his father acquired the land through an exchange involving a bicycle and cattle, as recorded on pages 8, 9, and 10 of the proceedings. The appellant submitted that this inconsistency undermines the credibility of the respondent's case and should have been addressed by the trial tribunal. He maintained that the law requires that the one who alleges must prove his allegation as per the holding in case of HEMED SAID vs MOHAMED MBILU (1984) TLR 13 and Section 110 of the Evidence Act, Cap 6 RE 2019. He also invited the court to visit the decision in the case of the BOARD OF TRUSTEES OF NATIONAL SOCIAL SECURITY FUND vs M/S JASSIE &CO. LTD, HC Civil Appeal No. 37 of 2021 (unreported) where the court insisted on the mandatory requirements of giving proof to allegations. In response, counsel for the respondent submitted that the respondent successfully discharged the burden of proof before the trial tribunal by providing a detailed and credible explanation of how his late father acquired the disputed land. He further bolstered his case by calling reliable witnesses, unlike the appellants, who presented evidence solely through the 1st 6 appellant and failed to establish any historical foundation or traceable connection to the disputed land. He contended that the evidence presented by the respondent carried more weight compared to the appellants' evidence. He asserted that the legal authorities cited by the appellants, including Hemed Said v. Mohamed Mbilu and The Board of Trustees of National Social Security Fund v. M/S Jassie & Co. Ltd, are distinguishable from the present case. The respondent argues that the records show he provided substantial evidence of the historical ownership of the land by his late father, thereby meeting the required standard of proof. The respondent concludes that the trial tribunal properly analyzed the evidence on record and reached a just decision in his favor. Accordingly, he prays for this honorable court to dismiss the appeal with costs. It is important to contextualize the acquisition of land in rural and unsurveyed areas in the historical period referenced, which is 1964. There is no evidence to establish that transactions involving land in such areas necessarily involved written agreements or receipts. In the absence of statutory requirements for documentation at the time, oral testimony and corroborative evidence from witnesses or other community members can be traditionally considered adequate proof of ownership. Moreover, the term "purchase" as used in the respondent's application does not strictly imply monetary exchange; it encompasses any transaction where valuable consideration is exchanged for land. Therefore, the respondent's testimony clarifying that the land was acquired through an exchange of items, such as a bicycle and cattle, does not contradict his application. Instead, it provides detail regarding the nature of the transaction, which aligns with traditional practices in unsurveyed and rural areas. The Court finds that the respondent's oral testimony regarding how the land was acquired is not inherently inconsistent with the averments in his application. While it is true that documentary evidence would have strengthened the respondent's case, the absence of such evidence does not automatically render his claim unproven. The critical question is whether the oral testimony, in conjunction with any other evidence presented, was sufficient to prove the respondent's claim on the balance of probabilities. 8 The evidence presented by the respondent, albeit oral, was detailed and consistent with common practices in the relevant context. Furthermore, the appellants did not provide any evidence to challenge the respondent's claim of ownership or to substantiate their defence that they owned the disputed land. It is a settled principle that a party asserting a claim or defense must provide evidence to support it, as per sections 110 and 111 of the Evidence Act [Cap. 6 R.E. 2022]. The failure of the appellant to present competing evidence further tilts the balance of probabilities in favor of the respondent. The trial tribunal's reliance on oral testimony was justified given the historical and practical realities of land transactions in rural Tanzania. The alleged inconsistency between the respondent's application and testimony does not amount to a contradiction but rather an elaboration. This court finds no merit in the appellant's argument that the respondent's evidence was contradictory or insufficient. Accordingly, the 2nd and 3rd grounds of appeal are dismissed. Having considered the arguments of the parties and the applicable law, this court finds no merit in the grounds of appeal. The judgment of the DLHT is hereby upheld. The appeal is dismissed with costs. 10