CHARLES ZOKA SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 16385 OF 2024 (Originating From Land Application No. 149 of 2015, Kibaha District Land and Housing Tribunal) CHARLES P. ZOKA @ OMARY RASHID................................................... APPELLANT VERSUS DR. FLORIAN MATHIAS KESSY........................................................... RESPONDENT JUDGMENT 30/08/2024 to 10/09/2024 E.B. LU VAN DA, J This appeal emanates from Land Application No. 149 of 2015 at the Tribunal where the Respondent named above sued the Appellant for trespassing into the land measuring twelve acres located at Zegereni (currently Miwaleni) Visiga Ward within Kibaha Township. The Respondent asserted to have purchased the suit property from Ramdhani Said Mchete on 26/03/2003 for a consideration of TZS 1,000,000/=, as per a sale agreement exhibit Pl. The Appellant faulted exhibit Pl being a fake and forged document, also faulted the transaction in exhibit Pl on account that the suit property was a matrimonial property between the Ramadhani Said Mchete (passed away on 20/09/2012) and Zainabu Said Chongo (passed away in 2016), where the Appellant alleged the late Zainabu Said Chongo did not consent. To this end, the Respondent tendered a letter of i administration where he (Appellant) was appointed to administer the estate of the late Ramadhani Said Mchete on 14/07/2015, exhibit DI. The Tribunal in its judgment decreed the Respondent as the lawful owner of the suit property and ordered the Appellant to pay the Respondent TZS 6,500,000/= as costs for destruction of poles committed by the Appellant when trespassed the suit land and TZS 5,000,000/= as general damages for loss sustained by the Respondent. Aggrieved by the above verdict, the Appellant preferred this appeal on the following grounds: One, the Tribunal erred in law for admitting documentary evidence exhibit Pl which was neither paid stamp duty and not original; Two, the Tribunal erred in law and fact for admitting exhibit Pl which was materially and visible different from the sale agreement by way of adding heading as attached from pleading; Three, the Tribunal erred in law for holding that PW5 witnessed and signed exhibit Pl whilst did not; Four, the Tribunal erred in law and fact for using and relying on handwriting expert evidence whilst the same was not admitted as evidence; Five, the Tribunal erred in law and fact for holding that the evidence by handwriting expert was taken against the Appellant whilst the same was given after examination of sale agreement exhibit Pl which was tendered by the Respondent; Six, the Tribunal erred in law for awarding TZS 6,500,000/= to the Respondent in absence of proof of the same; Seven, 2 the Tribunal erred in law and fact by relying on exhibit Pl which was inadmissible, contradictory, questionable and unsatisfactory; Eight, the Tribunal erred in law for relying on the evidence of PW1, PW3, and PW5 which was untrue, wanting, contradictory and unsatisfactory; Nine, the Tribunal erred in law and fact for awarding the disputed premises to the Respondent whilst the premises in question was far located and not connected with the premises that the Respondent claimed to have bought; Ten, the Tribunal erred in law and fact for not expressly stating the size of the premises in dispute and its location that is awarded to the Respondent; Eleven, the Tribunal erred in law and fact for not according enough weight to the evidence and testimony of the Appellant as well as his respective witnesses. For ground number one, the Appellant cited section 47(1) of the Stamp Duty Act, Cap 189 R.E. 2006. He submitted that exhibit Pl tendered by the Respondent only contains adhesive stamp of TZS 500, arguing it is contrary to what is provided under sections 18 and 19 Cap 189 (supra), which requires the instrument chargeable with stamp duty to show the amount charged with a seal, which was not done in exhibit Pl. He cited the case of Malmo Motangekosult AB Tanzania Branch vs Margret Gama, Civil Appeal No. 86 of 2001. He therefore asked for exhibit Pl to be expunged from the records. 3 For ground number two, the Appellant submitted that the Respondent had attached sale agreement in his pleadings, argued that for reason known to the Respondent tendered exhibit Pl which is different from the one which was attached in the pleadings, for an argument that the one tendered was added with a heading at the top which is missing in the one attached to the pleadings. He cited the case of NBC LTD vs MM World Wide Trading Company Ltd, Commercial Case No. 84 of 2015, for a proposition that parties are bound by their pleadings. For ground number three, the Appellant submitted that Ulembo Aliseni Sultani testified as PW5, the Appellant faulted the Tribunal for stating that PW5 witnessed and appended a signature in exhibit Pl, citing page six of the impugned judgment. He submitted that exhibit Pl does not contain the signature of PW5 as claimed under oath. He submitted that the Tribunal was erroneous to say PW5 signed exhibit Pl. For ground number four, the Appellant cited page thirteen of the impugned judgment, for an argument that the handwriting expert was not summoned to testify, argued it denied fundamental right to be heard, citing Margwe Erro and Two Others vs Moshi Bahalulu, Civil Application No. 11 of 2014, CAT. He submitted that it was erroneous for the Tribunal to rely on such evidence. 4 For ground number five, the Appellant submitted that due to the difference in sale agreement between the one which was attached to the pleadings and the one tendered in court, the Appellant decided to seek help from police, where both sale agreements were submitted before the handwriting expert and after careful examination report was produced to that effect. He submitted that the result of handwriting expert from police force were a result of correspondence from the Appellant, arguing it was never initiated by the Appellant. He submitted that it was wrong for the Tribunal to hold that the examination of sale agreement was taken towards the Appellant. For ground number six, the Appellant submitted that section 110(1) of the Evidence Act, Cap 6 R.E. 2018 requires whoever desire the court to give judgement in his favour must prove it, citing Tatu Mohamed vs Maua Mohamed, Civil Appeal No. 32 of 2000, CAT. He submitted that the Tribunal awarded TZS 6,500,000/= for the destroyed concrete poles, argued that there is no proof tendered as to the value and number of concrete poles. He submitted that it was not proper for the Tribunal to award TZS 6,500,000/=. For ground number seven, the Appellant submitted that exhibit Pl should be discarded for being vague and uncertain, for explanation that it indicate was made on 26/11/003 and the Respondent testified that it was made on 26/11/2003, arguing it is contrary to what was written in exhibit Pl. 5 For ground number eight, the Appellant submitted that the Respondent and his witnesses said the disputed area measuring seven and half acres is located at Zegereni whilst the in the pleading (application) at paragraph 6(a)(1) stated that the size of the disputed land is twelve acres. He submitted that this evidence contradict Salum (mason) who asserted that he built two rooms at an area located at Mlandizi. Ground number nine, the Appellant cited Government Notice No. 295 of 2015 showing Miwaleni and Zegereni are two different areas, citing the testimony of Selemani Nyangile and Joyce Mbuya who are the neighbors to the suit land. He submitted therefore that the land in exhibit Pl is far from and not connected with the suit land. Ground number ten, the Appellant submitted that the Respondent claim to have bought the disputed land from Radhani Mchete (deceased), in the pleadings stated to be twelve acres, but in evidence stated to be seven and half acres, arguing it is contradiction and queried on how many acres has been awarded to the Respondent with regard to contradictory of number of acres he claims to have bought. Ground number eleven, the Appellant submitted that the Tribunal did not accord enough weight to the evidence and testimony of the Appellant and his witnesses. He submitted that GN 205 of 2015 regarding location of the disputed 6 land, Joyce Mbuya and Selemani Nyangile who were neighbours to he disputed land, their evidence was not accorded enough weight. In reply, Mr. Rajabu Mrindoko learned Counsel for Respondent submitted that the complaints by the Appellant in the first ground of appeal is on two fold, that exhibit Pl was tendered and admitting without stamp duty being paid nor was it in original documents. He submitted that this complain lacks merits on four grounds, namely; One, it is a settled law that contents of an exhibit which was admitted without objection from the Appellant, were effectually proved on account of absence of any objection, citing Makubi Dogan Versus Ngodoimgo Maganga, Civil Appeal No. 78 of 2019 (unreported). He submitted that failure to object on admission of exhibit Pl for containing the so called adhesive stamp duty contrary to sections 18 and 19 of Cap 189 (supra), during trial bars the Appellant from raising it in this stage of an appeal, arguing that raising at this stage being an afterthought. He submitted that even if it is found that exhibit Pl is not duly stamped with stamp duty in compliance with sections 18 and 19 of Cap 189 (supra), argued that does not render the sale agreement inadmissible. He submitted that failure to pay stamp duty can not invalidated the proceedings of the Tribunal because the defect or omission is curable under section 45 of the Land Disputes Court Act cap. 216 R.E 2019 which require the court to do substantive justice. He submitted that, the 7 consequence for failure by party to pay stamp duty is to be ordered by the Court to pay the stamp duty at the rate the instrument is chargeable at the time of the sale, citing Mohamed Abood Versus D.F.S Express Lines Ltd, Civil Appeal No. 282 of 2019 and Fatuma P. Bassebe vs Jason Mutagulwa Rwiza, Civil Appeal No. 4 of 2021 at page 22 (unreported). He submitted that section 47 (1) (e) Cap. 189 (supra), provide for an exemption of the stamp duty to documents which have been executed before the government authorities, citing Esther Magese vs Erastosayi Noni, Mise. Land Appeal No. 52 of 2021 (unreported) at page 7. He submitted that exhibit Pl bears the stamp of the government authority which reveals that it was executed before Zegeleni Hamlet Office, therefore even if should have find to have no stamp duty in this stage, the absence of stamp duty would not vitiate its admissibility. Regarding a complaint that exhibit Pl is not an original, he submitted that failure to object on its admission bars the Appellant from raising it in this stage. He submitted that in not objecting at admission it is taken that contents were effectually proved on account of absence of any objection, citing Makubi Dogan Versus Ngodongo Maganga, Civil Appeal No. 78 of 2019 (unreported). He submitted that the record of the proceedings establish the Respondent produced the original sale agreement admitted without objection as exhibit PI. He submitted that the record shows that the Appellant examined 8 the document tendered and cross examined the Respondent which defeat his contention. He submitted that the Appellant thereafter complain to Police Kibaha that exhibit Pl was forged, where Police Kibaha wrote letters to the Tribunal asked to be availed and were availed with the original sale agreement admitted as exhibit Pl. He submitted that the record of the proceedings shows that the trial chairman could not compose judgment because the original sale agreement admitted as exhibit Pl was in police not returned and tasked the Appellant to make follow up so that the said exhibit is returned for the Tribunal to compose judgment. He submitted therefore that this complain by the Appellant is certainly an afterthought. For ground number two, the learned Counsel submitted that, it is settled law that not every procedural omission or error can vitiate the proceedings, regard being whether it has occasioned a miscarriage of justice. He submitted that if there was defect or irregularity in the admission of exhibit Pl, it cannot be a basis for revising or varying the judgment of the trial court, arguing the defect is curable under 45 of the Land Disputes Court Act cap. 216, citing Ramadhani Selemani Kambi Versus The Commissioner For Lands And Others, Civil Appeal No. 14 of 2020 (unreported) and Ms. Flycatcher Safaris Ltd Versus Ministry of Lands And Human Settlement Development, Civil Appeal No. 142 of 2017 (unreported). He submitted that the complaint made by the 9 Appellant is not fatal because has not complained in this ground that the omission complained of has occasioned him any prejudice. He submitted that exhibit Pl is substantially similar to the one attached to the pleading. He submitted that absence or lack of heading in the sale agreement attached to the application which may be caused by process of photocopying does not constitute a material discrepancies that would affect its admission for reason that the essential terms of the contract such as the parties involved, the subject matter and the agreed price remain unchallenged and intact. For ground number three, the learned Counsel submitted that the Appellant's complaint is unfounded because PW5 was credible witness. He submitted that it is settled position that every witness is entitled to credence unless there are sound reasons suggesting the contrary preposition, citing Goodluck Kyando Versus Republic (2006) TLR 369. He submitted that PW5 testified on how he was involved in acquired the disputed land by Respondent as ten cell leader, arguing his oral account tally with exhibit Pl as his name is mentioned in exhibit PI as ten cell leader. For ground number four and five, the learned Counsel submitted that the Respondent admitted the complaints by the Appellant. He submitted that the Tribunal made reference to the handwriting expert report as regard to the validity of exhibit Pl which was not produced and admitted in evidence. He 10 made a prayer that the said handwriting expert report which was referred by the trial chairman be expunged from the record and the court to consider the evidence of the Respondent because the Respondent evidence satisfactory proved the case. He submitted that the Court of Appeal when faced with situation where trial judge relied on admitted exhibit which was not read after admission, expunged the said exhibit and proceeded to sustain the trial judge decision basing on the remaining evidence on ground that was satisfactorily proved the case, citing Christian Ugbechi Versus Republic, Criminal Appeal No. 274 of 2019 (unreported). For ground number six, the learned Counsel submitted that the award was justified for reason that the evidence on record sufficiently establish the number of concrete poles destroyed and its value, citing the evidence of PW1, PW2 and PW3 for an argument that the same went unchallenged. He submitted that the trial chairman had the discretion to determine the appropriate amount of damage based on the circumstances of this case. He submitted that if this Court will find that the Tribunal erred in awarding of TZS 6.500,000/= without proof of the number and value of the poles destroyed, he argued the trial tribunal decision be varied by quashing and or setting aside the said order, citing Peter Christopher John Versus Dr. Edward Wilson Ngwale and Others, Land li Appeal No. 10 of 2018 (unreported), for a proposition that the Court quashed and set aside the alternative order for payment of compensation. For ground number seven, the learned Counsel submitted that this ground is unfounded and should be dismissed, for reason that the controversy alleged is on the spelling of the year in exhibit Pl, the year was misspelled to read "26.11.003". He submitted that except the spelling in the year, there is no dispute on the date and month in exhibit Pl. He submitted that the sale agreement admitted as exhibit Pl cannot be invalidated on misspelling of the year in the sale agreement which is minor defect and curable, argued as it does not go to the root of the matter. He referred this Court in the Court of Appeal when faced with defect of spelling of the deceased's name in the case of Omary Ally Fuku Versus National Microfinance Bank And Others, Consolidated Civil Appeal No. 135 427 of 2020 (unreported), for an argument that the Court held the confusion about the deceased name is minor and curable, it does not go to the root of the case. Ground number eight, the learned Counsel submitted that this complain has no merits for the explanation that the law is settled that it is not every contradiction or discrepancy in evidence in prosecution case goes to the root or will cause the case to flop, citing Christian Ugbechi Versus Republic, Criminal Appeal No. 274 OF 2019 (unreported). He submitted that there is no evidence of the 12 Respondent and his witness where said that the size of his land is 71/4 acres. He submitted that PW1 said that he purchased the land of 12 acres measured by human paces, later on he surveyed the same and it had 3.4 hectors equivalent to seven acres. He submitted that PW1 said that at the time of purchase the disputed land was located at Zegeleni but due to some changes in 2009 the disputed land is at Miwaleni, argued it was confirmed by PW5 as regard to size and location of the land at the time of sale transaction that it was twelve acres located at Zegeleni leadership. He submitted that, on cross examination said that due to sub-division the disputed land is now at Miwaleni Street. He submitted that it is only DW3 who said is living at Visiga which is the name of the ward where the street is situated. He submitted that looking on the contradiction stated by the Appellant in comparison with the coherence of prosecution evidence as regard to the Respondent ownership of the disputed land, he argue that the alleged contradiction was minor contradiction which do not go to the root of the matter, the land being at Zegeleni or Miwaleni is insignificant if the parties disputing ownership over one and the same land. He submitted that the allegation of fraud raised by the Appellant goes against the law, arguing that it is settled law that allegation of fraud in civil proceedings must be specifically pleaded and strictly proved on higher decree of probability than that which required in ordinary civil cases, citing Omary Yusuph versus 13 Rukia Ahmed Abdulkadr (1987) TLR 169. He submitted that basing on the position of the law it is obvious the Appellant has failed to discharge his duty of proving the allegation of fraud to the required standard on the balance of probabilities. Ground number nine, the learned Counsel submitted that, there is no contradiction on the location of the disputed land. He submitted that the Respondent testified that at the time of purchase it was at Zegeleni but due to some changes it is now at Miwaleni, Visiga Ward, Kibaha Town. He submitted that to prove that the disputed land was located at Zegeleni and now is at Miwaleni the Respondent called PW5 who was then ten cell leader of the area where the disputed land is situated. He submitted that PW5 said at the time of sale suit land was Zegeleni but currently the suit land is at Miwaleni due to sub division of streets. He submitted that the burden to prove that the disputed land is at Miwaleni and it has never been at Zegeleni lied on the Appellant who claimed so in his defense. He submitted that the Appellant argument that he filed GN. No. 205 of 2015 to prove that the disputed land is at Miwaleni and it has never been at Zegeleni, the learned Counsel argued that the alleged GN. No. 205 of 2015 was not tendered as an exhibit but was referred to the defense of the Appellant. He submitted that for the same to be relied upon by the trial court in determination of the location of the disputed land, it was incumbent 14 upon the Appellant who wanted to rely on it to tender it in evidence. He submitted that since the said Government Notice was not produced, argued that the Respondent failed to prove his allegation. He submitted that it is now settled law that documents, including well know public document, not admitted in evidence shall not form part of the record and thus cannot be relied upon, citing Jutoram Kabatele Mahalla vs Vocational Education Training Authority (Veta), Civil Appeal No. 63 of 2019 (unreported), for a proposition that in this case the Highway Code was not tendered as an exhibit but was referred in the defense of the Respondent and relied upon by the trial judge in his findings. The Court found that even though it was well known public document, but it was incumbent upon the respondent who wanted to rely on it to tender it in evidence. For ground number eleven, the learned Counsel submitted that the evidence of the two witnesses were not credible one. He submitted that he told the court that on cross examination that he don't know if the late Ramadhani Said Mchete sold the land because was not taking care of it and admitted that the land where he stay is boarded with the Respondent is in dispute with PW2. He submitted that DW4 said that she is a neighbour to the disputed land after purchasing the same from the late Ramadhani Mchete but failed to produce document of purchase. He submitted that to prove that the disputed land is at Miwaleni and 15 it has never being at Zegeleni, the Appellant was supposed to call from the relevant authority. He submitted that failure to call any leader from Zegeleni or Miwaleni to disprove the evidence of PW1 and PW5 as regard to location of the disputed land, the court has to draw a negative inference against him, citing Gabriel Mathias Michael Versus Halima Feruzi And Others, Civil Appeal No. 28 of 2020 (unreported). For ground number ten, the learned Counsel submitted that, this ground has no merits and it cannot fault the trial tribunal decision for explanation that it is settled position of law that difference of measurements of un-surveyed land cannot invalidate the evidence of ownership, citing Gabriel Mathias Michael Versus Halima Feruzi And Others, Civil Appeal No. 28 of 2020 (unreported). He submitted that the Respondent pleaded and testified that he purchased the land of twelve acres measured by human paces and that after purchase he surveyed the land it was found to have 3.4 hectors which was equivalent with seven acres. He submitted that since the suit land was not surveyed at the time of sale transaction, the difference of measurement after survey does not invalidate the evidence of ownership, for reason that the focus of the trial court was on who is entitled to the disputed land. On my part, I will start tackling ground number one thus: the Tribunal erred in law for admitting documentary evidence exhibit Pl which was neither paid 16 stamp duty and not original. According to the records of the Tribunal when exhibit Pl was produced for tendering, there was no objection which was raised by Advocate Bugeza learned Counsel for Appellant that the document was not original or that it was not stamped. Therefore, raising at appeal, sound an afterthought. Above all, as pin pointed by the learned Counsel for Respondent, the records of the Tribunal reveal that after exhibit Pl was admitted into evidence on 16/06/2016 and 2/10/2018 the office of Regional Crimes Officer (RCO) for Pwani requested for original document of a sale agreement which was admitted in the Tribunal proceedings as exhibit Pl, which was made vide a letter Ref. PWA/CID/130/VOL.XXX/166, followed by a reminder letter Ref. PWA/CID/130/VOL.XXX/184 dated 26/11/2018 which insisted for an original document, where on 12/122018 the learned Chairman of the Tribunal submitted the original sale agreement exhibit Pl to the RCO, vide a letter Ref. DLHT/KB/BAR/33/2018. Meaning that at the time of admission, the original version was available for inspection by the learned Counsel for the Appellant, no wonder such an argument was not forthcoming. Above all, in the letter of the RCO Ref. PWA/CID/130/VOL.XXX/166 made it categorically that it is the Appellant who lodged a complaint thereat. Therefore, the argument that exhibit Pl was wrongly admitted and relied by the Tribunal on account of being a photocopy was not raised in good faith on the part of the Appellant. 17 Regarding a complaint that no stamp duty was paid in exhibit Pl. As alluded by the learned Counsel for Respondent that failure to pay stamp duty does not render a document inadmissible, nor invalidated the proceedings of the Tribunal, neither entail it be expunged from records as suggested by the Appellant. In contrast, the defect or omission is curable under section 45 of the Land Disputes Court Act cap. 216 R.E 2019 which require the court to do substantive justice. The consequence for failure by a party to pay stamp duty is to be ordered by the Court to pay the stamp duty at the rate the instrument is chargeable at the time of the sale. In the case of Fatuma S. Bassebe Versus Jason Mutagulwa Rwiza, Civil Appeal No.4 of 2021 Tanzlii, page 22, the apex Court commented that, I quote, 'We agree with the respondent's counsel that exhibit 'A' was not inadmissible because of the omission to stamp it. In the case of Elizabeth Mboya (supra), cited by the learned counsel for the respondent. In that case, the High Court had faulted the decision of the Resident Magistrate's Court on the ground that, it was based on the written contract which was not stamped in accordance with the Stamp Duty Act. On appeal, the Court held that: "Failure to stamp the contract of sale was an irregularity not affecting jurisdiction of the Court and was cured by section 73 of the Civil Procedure Code, 1966. The respondent is ordered 18 to pay the duty with which the instrument is chargeable'7 Guided by the above stated position, we find no merit in the 3rd ground of appeal. The same is dismissed. We order that the stamp duty be paid by the respondent at the rate the instrument was chargeable at the time of the sale agreement7 Therefore the Respondent is directed to comply with the requirement of paying stamp duty for exhibit Pl, within fourteen days and remit a proof for payment of the same to the Deputy Registrar. For ground number two, thus: the Tribunal erred in law and fact for admitting exhibit Pl which was materially and visible different from the sale agreement by way of adding heading as attached from pleading. It is true that in exhibit Pl at a top there is a heading reading "HATI YA MAUZO YA SHAMBA KATI YA MNUNUZI DR. FLORIAN M. KESSY NA MUUZAJIRAMADHANI SAID MCHETE" These wordings are missing in the version of a document attached to the pleadings. However, as I have stated above, these concerns were not raised by the Appellant's Counsel at the time of admission of exhibit Pl. To my view, raising at appeal stage is taken as an afterthought. Again, the Appellant aligned his complaint to a rule that parties are bound by their pleadings. But to my respective view, that rule is on broader perspective, the same cannot be narrowed down to mere annotations on a document. In other words, the test here will be whether the alleged additional wording had the effect of distorting 19 the terms of the document or the contents thereof. To my view, the said added wording did not in any case dilute the terms or contents of exhibit Pl, rather were mere cosmetics to supplement what was envisaged under the terms therein. Indeed, the Appellant did not say if at all it occasioned any miscarriage of justice on his part. Therefore, ground number two is unmerited. Ground number three that: the Tribunal erred in law for holding that PW5 witnessed and signed exhibit Pl whilst did not. To my view, the Tribunal is faulted for nothing. At the alleged page six of the impugned judgment nowhere the Tribunal refereed specifically to PW5 to have signed exhibit Pl. Rather the Tribunal stated generally that both parties appended their signatures in exhibit Pl along their respective witnesses. Above all, at the alleged page six of the impugned judgment, the learned Chairperson was still narrating what witnesses had testified, specifically the Tribunal was recapitulating the testimony of PW1, where at page five extreme bottom was narrating people who attended the sale transaction, PW5 being inclusive. To be precise, it was not part of the Tribunal findings. This is because, the Tribunal findings run from page twelve of the impugned judgment at the second paragraph. Therefore, ground number three is baseless. Ground number four that: the Tribunal erred in law and fact for using and relying on handwriting expert evidence whilst the same was not admitted as 20 evidence. The learned Counsel for Respondent conceded to this ground, and invited this Court to expunge the evidence of the forensic report referred by the Tribunal when was giving effects to exhibit Pl. Of course, the learned Chairperson slept into an error to rely on the evidence forensic report from the RCO which was not formerly tendered in evidence by either party. Therefore, a mere fact that the RCO had relayed it to the Tribunal and found its way into the file of the Tribunal, it was not an automatic ticket for the Tribunal to use it. This is because that forensic report was not officiated or formalized to form part of the Tribunal's records. Therefore, a forensic report referred at page thirteen and fourteen of the impugned judgment along findings attached to it, are discarded from the impugned judgment. This finding will take into board ground number five. Ground number six that: the Tribunal erred in law for awarding TZS 6,500,000/= to the Respondent for in absence of proof of the same. The learned Counsel for Respondent submitted that in event this Court will find that the Tribunal erred in awarding of TZS 6,500,000/= without proof of the number and value of the poles destroyed, he invited this Court vary by quashing and or setting aside the said order. By implication, the learned Counsel for Respondent was conceding that the award of TZS 6,500,000/= for compensation for destruction of concrete poles was unjustified for want of proper proof. Indeed, 21 the Tribunal did not give reason and bases for the award of TZS 6,500,000/=, regard being, the Respondent did not concentrate and focus on adducing testimony for the cost of the alleged concrete poles. Arguably the conduct of the Appellant storming into someone land without any claim of right while armed with matchet, embarking into petitioning it, uprooting concrete poles, demolishing a hut built thereon, was unjustified. However, as much the learned Counsel for Respondent was lenient, I vary and set aside an order for payment of TZS 6,500,000/=. Ground number seven that: the Tribunal erred in law and fact by relying on exhibit Pl which was inadmissible, contradictory, questionable and unsatisfactory. The Appellant submitted that exhibit Pl should be discarded for being vague and uncertain, for explanation that it indicate was made on 26/11/003 and the Respondent testified that it was made on 26/11/2003, arguing it is contrary to what was written in exhibit Pl. The learned Counsel for Respondent submitted that the sale agreement admitted as exhibit Pl cannot be invalidated on misspelling of the year in the sale agreement which is minor defect and curable, argued as it does not go to the root of the matter. It is true that in exhibit Pl the date was referred as 26.11.003. However, all Respondents witnesses, to wit PW1 (Dr. Florian Mathias Kessy), PW2 (Matine Mathias Kessy), PW5 (Ulembo Aliseni Sultani) asserted that the sale was 22 transacted on 26/11/2003. Therefore, a mere reference to "003", to my view, is a mere deviation to the form of recording date instead of recording the entire year 2003, the author recorded 003. However, as alluded by the learned Counsel for Respondent, the omission is a mere minor defect, which cannot invalidate the entire contents of exhibit Pl. Section 64 of the Interpretation Act, Cap 1 R.E. 2019, provide, 'Except as is otherwise provided, wherever forms are prescribed, deviations therefrom not affecting the substance and not calculated to mislead, shall not vitiate them7 In the argument of the Appellant did not say if the deviation to the standard form of recording date (year) affected the substance of the document or if was calculated to mislead. Therefore, the omission is not fatal. It is ignored. Ground number eight that: the Tribunal erred in law for relying on the evidence of PW1, PW3, and PW5 which was untrue, wanting, contradictory and unsatisfactory. In his submission, the Appellant narrowed the scope of his ground. The Appellant submitted that the Respondent and his witnesses said the disputed area measuring seven and half acres is located at Zegereni whilst the under the application at paragraph 6(a)(i) stated that the size of the disputed land is twelve acres. He submitted that this evidence contradict Salum (mason) who asserted that he built two rooms at an area located at Mlandizi. The learned Counsel for Respondent submitted that that the alleged 23 contradiction was minor contradiction which do not go to the root of the matter, the land being at Zegeleni or Miwaleni is insignificant if the parties disputing ownership over one and the same land. It is true that Ramdhani Salum who testified as PW4 on the case of the Respondent, asserted that he constructed a house with two rooms at Mlandizi in 2006. But, PW4 was a mere mason living at Kimara. In his testimony, PW4 asserted that he never visited again at the site after completing construction in 2006. On cross-examination by the learned Counsel for Appellant, PW4 stated that the proper name of the area where he built a house is unknown to him. To my view, contextually the testimony of PW4 cannot said to have introduced in serious discrepancy on the case of the Respondent, regard being PW4 was a mere mason, engaged on ad hoc basis and never re-visited at the site and was not involved during purchase. Therefore, his fact that he built two rooms at Mlandizi, is ignored. Regarding a discrepancy between twelve or seven and half acres. As alluded by the learned Counsel for Respondent, nowhere the Respondent said that the size of his land is 71/4 acres. PW1 said that he purchased the land of 12 acres measured by human paces, later on he surveyed the same and it had 3.4 hectors equivalent to seven acres. According to PW1, at the time of purchasing, the disputed land was located at Zegeleni but due to some changes in 2009 the 24 disputed land is at Miwaleni. This fact was confirmed by PW5 as regard to size and location of the land at the time of sale transaction that it was twelve acres located at Zegeleni leadership. According to the testimony of PW1 at the time of purchasing in 2003 they measured through footsteps and established twelve acres, as per exhibit Pl and in 2008 when he was conducting survey it was depicted to be seven plus acres, as per survey of plot at Visiga exhibit P2. Therefore, to my view, there is no serious contradiction here. The testimony of PW5 clarified the reason for that difference. Equally the testimony of PW5 clarified regarding the actual location of the suit land. PW5 stated that at the time of purchasing, the suit land was at Zegeleni and not Miwaleni. According to PW5 who happened to hold posts of Mjumbe wa Shina, member of the hamlet committee or secretary, explained that currently the suit land is located at Miwaleni and not Zegeleni, for explanation that Zegeleni was sub divided where the suit land fall under Miwaleni. Therefore, the allegation that the Respondent is calculated to defraud the Appellant's land is unfounded. As alluded by the learned Counsel for Respondent, contextually parties are litigating under the same title of land. In fact, it is the Appellant who is struggling hard with minor details to twist the location of the suitland in view of attempting to kickout the Respondent from the suit land, unfortunate all attempts and twisting end in vail. This ground too is unmerited. 25 Ground number nine that: the Tribunal erred in law and fact for awarding the disputed premises to the Respondent whilst the premises in question was far located and not connected with the premises that the Respondent claimed to have bought. In his submission, the Appellant cited Government Notice No. 295 of 2015 showing Miwaleni and Zegereni are two different areas, citing the testimony of Selemani Nyangile and Joyce Mbuya who are the neighbors to the suit land. He submitted therefore that the land in exhibit Pl is far from and not connected with the suit land. The learned Counsel for Respondent submitted that the burden to prove that the disputed land is at Miwaleni and it has never been at Zegeleni lied on the Appellant who claimed so in his defense. He submitted that the Appellant argument that he filed GN. No. 205 of 2015 to prove that the disputed land is at Miwaleni and it has never been at Zegeleni, the learned Counsel argued that the alleged GN. No. 205 of 2015 was not tendered as an exhibit but was referred to the defense of the Appellant. Going by the records of the Tribunal, the alleged GN 205 of 2015 was not tendered in evidence. In the written statement of defence, the Appellant pleaded and attached a document annexure CPZ1, tiled "Jamhuri ya Muungano wa Tanzania" in its content at the top of each page there is a sub-heading reading "Notisiya Orodha ya Vijiji vilivyosajiliwa kwenye Serikali za Mitaa (Mamiaka za Wiiaya Tangazo ia 26 Serikali Na. 205A (linaendelea). In the said document the wording reflecting the year 2015 is missing. For the sake of argument, assuming it is indeed GN No. 205 (sic, A) of 2015, as alleged, still the argument of the Appellant that Miwalani where the suit land is located has never changed to Zegereni, cannot sail through. It is true that in the said GN 205A of 2015, among the mitaa for Visiga Ward Kibaha Township Pwani Region, listed at page 53, Zegereni and Miwalani are mentioned as among mitaa for Visiga Ward. But to my understanding this list is not permanent one, rather is subject to variation of its boundaries, re­ establishment for purpose of promoting, developing and maintaining an effective and efficient system of local government. According to the provision of section 22(3) of The Local Government (District Authorities) Act No. 7 of 1982, Cap 288 R.E. 2019, (under which the purported GN 205 of 2015 is derived as is cited Notisi ya Orodha ya Vijiji vilivyosajiliwa kwenye Serikali za Mitaa (Mamlaka za WUaya Tangazo la Serikali Na. 2O5A) provides, I bold a pertinent porion, 'The Registrar shall, from time to time, and at ieast once in every calendar year, cause to be published in the Gazette listing every village registered by him since the publication of the previous notice and specifying the location of that village' 27 Therefore, the said GN 205 of 2015 (annexure CPZ1) carry forward the argument of PW5 who explained that currently the suit land is located at Miwaleni and not Zegeleni, for reason that Zegeleni was sub divided where the suit land fall under Miwaleni. Ground number ten that: the Tribunal erred in law and fact for not expressly stating the size of the premises in dispute and its location that is awarded to the Respondent. Arguably, in the impugned judgment the Tribunal did not state expressly the suit land. However, at page twelve at the last paragraph extreme bottom, the Tribunal ruled, Baraza iinaona kwamba Mleta Maombi (shahidi PW1) na mashahidi wake PW2, PW3, PW4 and PW5 wamethibitisha kwamba Mleta Maombi alinunua eneo lenye mgogoro kihalali kutoka kwa mmiliki Ramadhani Said Mchete tarehe 26/11/2003 kama inavyonyesha katika kieieiezo namba Pl../ To my view, by making reference to exhibit Pl the Tribunal by necessary implication described the location and size of the land awarded to the Respondent. Therefore, this ground is dismissed. Ground number eleven that: the Tribunal erred in law and fact for not according enough weight to the evidence and testimony of the Appellant as well as his respective witnesses. The Appellant cited Joyce Mbuya (SW4) and Selemani Nyangile (DW2) who were neighbours to the disputed land, argued their evidence was not accorded enough weight regarding location of the disputed 28 land. The learned Counsel for Respondent submitted that the evidence of the two witnesses were not credible one. He submitted that DW4 said that she is a neighbour to the disputed land after purchasing the same from the late Ramadhani Mchete but failed to produce document of purchase. Going by the impugned judgment, specifically at page sixteen, the learned Chairperson considered the testimony of DW2 to the effect that DW2 asserted that the suit land belongs to Zainabu Said Mchete who is the grandmother to the Appellant; DW4 asserted that she was not involved as a neighbour during sale exhibit Pl. However, on cross examination DW4 stated that it was not mandatory for her to be involved during sale. As to the context of testifying in connection to GN 205 of2015, neither of them adduced any specific fact relating to GN No. 205 of 2015. Therefore, this ground is unmerited. Save for grounds number six which have been allowed and an order for payment of TZS 6,500,000/= set aside, ground number four and five where forensic report along findings attached to it have been discarded, but still the appeal as whole is doomed to fail, for reason that the ground which sailed through were incapable of denting Respondents case or evidence to be precise have no effects of changing the conclusion reached by the Tribunal. Therefore, the decision of the Tribunal is upheld including an order for payment of TZS 29 5,000,000/= as general damages for loss sustained by the Respondent, which was not challenged or appealed against. The appeal is dismissed. The Respondent is ordered to foot costs of this appeal. LUVANDA UDXjE Judgment delivered in the presence of Mr. Michael Kayombo for the Appellant, Ms. Neema Masame Advocate holding brief for Mr. Rajabu Mrindoko learned Counsel for Respondent. LUyANDA UDGE 09/2024