DIZELE SAFII

IN THE HIGH COURT OF THE UNISTED REPUBLIC OF TANZANIA

LAND DIVISION

AT DAR ES SALAAM LAND APPEAL NO. 23822 OF 2024 (Arising from the decision of District Land and Housing Tribunal for Kisarawe in Application No. 04 of2023 dated27/8/2024 by Hon. S. I. Mbuga Chairperson) CHRISTOPHER FRANCIS........................................ APPLELLANT

VERSUS HAJI ABDALLAH DIZELE......................................... RESPONDENT

JUDGMENT 12/12/2024 & 10/02/2025 N.E MAN DI A, J The appellant, Christopher Francis, being aggrieved by the decision of District Land and Housing Tribunal for Kisarawe in Land Application No. 04 of 2023 dated 27th day of August 2024 appealed to this court on the following grounds: - 1. That, trial Chairperson erred in laws and fact by failure to take into consideration that the appellant and the seller (previous owners) had used and been in occupation, possession and ownership of the dispute land for more than 40 years uninterrupted while the respondent was around and he was neighbouring the appellant on the said disputed land.

2. The trial Chairperson erred in law and fact by failure to evaluate and secretly the evidence on record which resulted to wrong decision which prejudiced the appellant rights. 1 3. That the trial Chairperson erred in law and fact in deciding that the appellant bought a land to a person who had no ownership in the disputed land.

4. That the trial Chairperson erred in law and fact by not rejecting the incompetent application instead keep entertaining the matter which had no jurisdiction for lack of properjurisdiction of the disputed land.

5. That the trial Chairperson erred in law and fact by ertataining the matter which did not disclose properly cause of action against the appellant.

6. That the trial Chairperson erred in law and fact by only deciares the appellant as a trespasser by basing on oral evidence who had no documentary evidence to ownership while disregard the same evidence from the appellant and his evidence including the seller of that land.

7. That the trial Chairperson erred in law and fact by entertaining the dispute of two acres while the mediation before Village council was on dispute of one acre only.

8. That the trial Chairperson erred in law and fact by entertaining the dispute by relying on incredible letter Ward Tribunal on failure of mediation written by unknown person non authorized person.

9. That the trial Chairperson erred in law and fact by retying on tight evidence of the respondent and his witnesses which was on contradiction with the facts pleaded in the application and despise the strong and dear evidence adduced by the appellant. The dispute surrounding this appeal is on a piece of land measuring two (2) acres situated at Maneromango, Kisarawe District, Coastal Region where the respondent claimed that the appellant has trespassed 2 to it. The trial Tribunal ruled in favour of the respondent hence, this appeal. The appeal was heard by way of written submission. The appellant was represented by Mr. Kurubone Pasensa, learned counsel whereas the respondent appeared in person and unrepresented. The appeal was first scheduled for judgment on 19th November, 2024 however, the respondent wrote a letter informing the court that he failed to file his reply submission due to the illness of his mother hence, prayed for the enlargement of time to file his reply submission the prayer which was not objected by the appellant. Judgment was fixed on 12th December, 2024 but again was adjourned to 10th February, 2025. In support of the 1st ground of appeal, Mr. Kurubone submitted that the evidence on record shows that appellant and her sellers one Luciana Pazi and her children's Raphael, Zephania and Joyce have altogether in different years been in possession, occupation, use

and ownership of the disputed piece of land for more than 40 years uninterruptedly. That DW2 testified that he was 44 years and that since he was born he found his parent owning the land and was neighbouring with Abdallah Dizele who is the respondent's father. That the trial Tribunal should have considered such a testimony as a proof that the 3 disputed land which was not claimed by the respondent for all those 40 years until 2013 when it was sold to the appellant who then started cultivating different crops and built a permanent house. That there is nowhere on the records it was established that the respondent has been in possession, cultivating or owned the disputed land. Mr. Kurubone was surprised by the trial Tribunal reliance on light evidence that the land was borrowed by DW2 and DW3's father only to cultivate and use for sometimes. That there was no evidence to such borrowing and its time limit. He wondered how was it possible that the land in disputed was borrowed for more than 46 years and the purported owner never claimed it back until the death of Luciana in 2011. The counsel submitted further that the evidence given by PW1 which was obtained from Mama Mkumbi should have not been considered as they were hearsay with no evidential value as per section 62 of the Evidence Act [Cap 6 R.E 2019]. That these facts drew an inference that the respondent has never been in

ownership of the land in dispute and he only want to invade and grab appellant's land without any colour of right. He prayed that the court should re-evaluate and 4 consider the years used by the appellant including the person who sold the land to him and time limit to recover ownership in land. On the 2nd ground of appeal, Mr. Kurubone contended that in principal there is irrebuttable presumption that the appellant and previous owner of the land in dispute (seller) had been in the said land for more that 40 years and the appellant had been in use of the same from 2013 to date and he is living there with his family. That according to section 119 of the Evidence Act(supra) the burden of proof regarding the ownership of the disputed land lied on the respondent. The counsel contended further that the respondent who claimed to have acquired the disputed land as gift inter vivos from his father should have brought the eye witnesses mentioned as Seleman Dizele, Kichwa Dizele, Shaban Dizele and Hamis Dizele to testify and prove the fats pleaded by respondent in the trial Tribunal as required by section 110(1), 111 and section 112 of the Evidence Act(supra).' That there is inconsistence in the year the land in dispute was given to the respondent by his father Abdalla Disele. That the testimony given by PW1, PW2, PW3 and PW4 contradicted the facts pleaded in the application. That the

trial chairperson failed to scrutinize and evaluate the evidence on record properly and that the evidence of DW1 was 5 strong and was not considered or evaluated in the decision. He believed that the appellant has proved how he obtained the land in dispute from Luciana Pazi and her children who testified as DW2 and DW3 in the year 2013 and 2014 respectively. On the 4th and 5th grounds of appeal, Mr. Kurubone submitted that proper description of the subject matter in land disputes is very crucial. That the respondent failed to describe the land in dispute and as a result the precise location of the land is unknown. He submitted further that the respondent had no any written document showing that the land he claimed to own was given to him as a gift. The counsel referred to Order VII Rule 3 of the Civil Procedure Code [Cap 33 RE 2023] to substantiate his argument on the proper description of the land in dispute. He also cited the case of OLORUBARE NGINYU VS. KILEMPU KINOKA LAIZER, Civil Appeal No. 416 of 2021 and LUPEMBE VILLAGE GOVERNMENT IKOLO WARD KYELA DISTRICT & ANOTHER VS. BETHELEHAMU MWANDAFWA & OTHERS, to bolster his argument that disclosing boundaries and names of owners of the adjacent parcels of land are necessary to describe the suit property. He was of the view that the respondent failed to give description of the land in disputed and 6 he did not disclose the cause

of actions against the appellant. He prayed for the court to allow these grounds for having merits. On the 3rd and 6th ground of appeal, Mr. Kurubone submitted that the fact that no leader was involved in the sale and lack of documentary evidence of ownership by the seller does not deprive someone's right in property because in village many people are owning land without any document. That the Tribunal was keen on documentary ownership of the seller while it did not bother on the contradictory statement and testimony of the respondent and that he had no any document in proof of the land in dispute either. On the 7th and 8th grounds of appeal, Mr. Kurubone submitted that following the amendment made to the Land Disputes Court Act [Cap 216 R.E 2019] through the Written Laws (Miscellaneous Amendments) Act No. 5 of 2021, the District Land and Housing Tribunal is not allowed to hear and decide a land dispute unless the ward tribunal has attempted to settle the dispute amicably and has issued a certificate that mediation has failed. That it is on record that the dispute at hand went through Maneromango ward tribunal which visited the locus in quo with both parties and issued a decision that was binding to both parties. That all transaction, dealings and correspondences derived from the ward 7 tribunal referred to one acre as presented by the appellant. He submitted further that it

was an error for the trial Tribunal to deal with the dispute of two acres while the dispute presented for mediation involved one acre. On the 9th ground of appeal, Mr. Kurubone referred in the case of MAKORI WASSAGA V. MWANAKOMBO AND ANOTHER (1987) TLR 88, where it was held that: - "a party is bound by his pleadings and can only succeed according to what he has overbred in his plaint and proved in evidence hence, he is not allowed to set up a new case". He submitted that it is not only the parties who are bound by their pleadings but courts are also bound by pleading of the parties. That the evidence by the respondent was very light to be declared owner despite the strong and consistent evidence adduced by the appellant. That records revealed that the respondent testimony and of his witness greatly contradicted with facts pleaded in the application. Finally, Mr. Kurobone prayed for the appeal to be allowed with costs. In rebuttal, Mr. Dizele contested that the 1st ground of appeal is not part of the suit because the appellant has never been in possession, occupation or ownership of the land in dispute. That his documents 8 showing that he owns the land in dispute were not certified by neither commission for oath nor village/ward leaders. That the information issued by the appellant that he owned the disputed land for almost 40 years is untrue because the sale agreement was made

on 11th September, 2013 and 16th November, 2013. That the appellant's statement that his ownership came from the purchase of two different pieces of land as indicated in the sales agreements shifts the burden of proof on him to prove how he became owner of the land in dispute. Mr. Dizele contended that the appellant submission that there was contradiction on the size and time he acquired the land dispute was untrue because he was given six (6) acres of land by his father but two (2) out of the said 6 acres was in dispute while the remaining four (4) acres was undisputed. That his claim was for those two (2) acres in dispute. He contended further that there is a dilemma in the appellant ownership since the period from 2013 to 2023 does not make 40 years as he claimed. On the 2nd ground of appeal, Mr. Dizele submitted that it is surprising for the appellant to repeatedly contend that he owned the land in dispute for almost 40 years something which is untrue in as much as the sales agreements attached in the Misc. Application No. 29 9 of 2023 are concerned. That the appellant is contradicting himself that he owned the disputed land for 40 years and at the same time that he stayed in the land in dispute from 2013. That he is not sure of when his ownership of the land in dispute started as compared to the respondent who owned the disputed land since 1986 as witnessed by

Selemani Dizele, Kichwa Dizele, Shabani Dizele, Hamisi, Dizele and Zakhia Shomari Vulu before the trial Tribunal. Mr. Dizele submitted further that the appellant challenged the issue of respondent being given the land in dispute as a gift from his late father however, after hearing witnesses, he realized that the respondent's father owned the land in dispute That the testimony of DW2 that "anamjua mdai kama mtoto wa Marehemu ABDALLAH DIZELE ambaye alikuwa amepakana na shamba la baba yao yaani Mzee Mazengo"az\^ that of DW3 revealed that the land in dispute was owned and controlled by the respondent father. Mr. Dizele contended that he owned the land in dispute as natural gift from his late father as testified by his mother Zakhia Shomari Vulu, PW2, his elder Selemani Mwinyi Mkuu Dizele, PW3 and Shabani Abdallah Dizele, PW4. That the issue took over in 1986 when the respondent was a minor and when he grew up the dispute occurred and was mediated io by the village council, ward tribunal and then the district tribunal. Therefore, the trial Tribunal did not error in law and in facts by issuing a judgement in favour of him because the appellant failed to defend the respondent's application properly. Having gone through the submissions of the parties and the records brought before this court, the crucial issue for determination is whether the appeal is meritorious. At the outset, I

would like to make it clear that the respondent is a layman and he was unrepresented hence, he managed to make his submission on two grounds of appeal only instead of nine grounds as submitted by the counsel for the appellant. However, for the interest of justice, I will make my analysis and determination basing on all grounds of appeal as submitted by the appellant. In response to the 1st ground of appeal, after going through the records of the trial Tribunal, I have realized that one Luciana Pazi or Mama Mazengo and his husband Martini Mazengo were given a piece of land by respondent's late farther to cultivate food crops. Thereafter, in 2013 Mama Mazengo sold one acre of the disputed land to the appellant and later on in 2014 her children's Raphael, Zephania and Joyce sold another one acre of the disputed land to the appellant. li It is also on record that when Mama Mazengo was asked by the respondent as to why he sold his land, she respondent that since her husband died she faced a lot of challenges and that is why she sold the disputed land wrongly to the appellant. It has also been noted that the allegation that the appellant and Mama Mazengo had been in occupation, possession and ownership of the disputed land for more than 40 years uninterruptedly is a new evidence which was never discussed in the trial Tribunal. Despite this fact, it is also clear on record that

Luciana Pazi/Mama Mazengo never owned the suit land. Therefore, I am of the settled view that the trial Chairperson did not err in law and fact as the submission made herein is new and was not brought into the attention of the trial Chairperson. This ground of appeal has no merit. In respect of the 2nd ground of appeal, I am on the considered view that the standard of proof in civil cases is on balance of probabilities. It is on records that the respondent was given the land in dispute by his late father and his testimony was corroborated by the testimony of PW2, PW3 and PW4. On the other hand, the appellant evidence reveals that he bought the disputed land from Luciana Pazi/Mama Mazengo who, there is no evidence on records that she owned the land in dispute. Worse still, even her children who testified as 12 DW2 and DW3 does not know how their mother one Luciana Pazi owned the suit land. I agree, as correctly submitted by Mr. Kurubone, that the law of evidence requires that the one who alleges must prove, and in the trial Tribunal it is the respondent who owed that duty. I have no hesitation to state that the responded did play this role so well. Therefore, I am in all fours with the trial Chairperson that the respondent did actually prove his case in the required standard of civil case, that of balance of probabilities. I am afraid that even this ground has no

merit. Regarding the 4th and 5th grounds of appeal, that the suit property was not well described and that there was no cause of action against the appellant. I hold the view that these issues should have been brought in the trial Tribunal as a preliminary point of law. Bringing them at this stage is in a way unbecoming. It is a trite law Order VII Rule 3 of the Civil Procedure Code(supra) that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. It is also my understanding that for un surveyed land, the description should include physical features found around it, the size, boundaries marks and the neighbours. In MARTIN FREDRICK RAJAB VS. ILEMELA MUNICIPAL COUNCIL & 13 ANOTHER (Civil Appeal 197 of 2019) [2022] TZCA 434 (18 July 2022) the CAT court held that: - " 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 land among others, were stated in the plaint" However, in the matter at hand, the records clearly indicate that the suit land was describe in the application as Northern Maneromango, Kisarawe, Coastal Region. Also at paragraph 6(v) of the application, the land in dispute was described to has been planted with permanent crops as Michungwa, Michenza, Minazi,

Milimao ,Miembe, Michikichi, Midimu and Mikorosho. It is on record also that the land in dispute was described in the proceedings for the trial Tribunal when the respondent mentioned his neighbours bordering his land as to the East there is Jumanne Kichwa, West Mbange, North Mama Mfune and South Mwavuge. Despite the fact that this issue was not raised in the trial Tribunal, I am of the considered position that the suit land was well described. In as much as the respondent has properly described the land in dispute, and because is the same land in which the appellant is claiming ownership, I have no doubt that the respondent has a cause of action against the appellant. Having found as I did, these grounds also have no merits. 14 In respect to the 6th ground of appeal, I hold as I did while responding to the 1st ground of appeal that the respondent has proved his case on the required standard in civil cases, that is on balance of probabilities. It is on record that the respondent was given the suit land by his later father and his testimony was corroborated by the testimony of PW2, PW3 and PW4. It is my further view that oral evidence is acceptable in law, so the court cannot rely only on documentary evidence even where they are not reliable. The court will always measure the weight of evidence adduced and decide basing on the weight of those evidences. In this case, it is

obvious that the respondent's testimony and evidence was heavier than that of the appellant. It is again my view that this ground lacks merit. On the 7th ground of appeal, after going through the records, this court found that the respondent submitted that he owns six (6) acres of land but only two (2) acres are in dispute. It is also on record that the appellant bought one acre from Luciana Pazi on 2013 and another one acre from Luciana Pazi's children one Raphael, Zephania and Joyce in 2014. It is therefore my considered view that it was correct for the trial Tribunal to entertain a dispute of two (2) acres as shown on the records. This ground also has no merit. t 15 In respect of the 8th and 9th grounds of appeal, after going through the records, I am of the considered position that the trial Tribunal did not rely on an incredible letter of the the ward tribunal on failure of mediation. It is on record that the appellant bought one acre from Luciana Pazi on 2013 and another one acre from her children Raphael, Zephania and Joyce in 2014. It is my settled position that the trial Tribunal properly analyzed the evidences and testimonies adduced during hearing and decided in accordance with the weight of evidences submitted. It is a fact that the one with heavier evidences than the other will always win the case. It is my view therefore that these grounds have no merits. In the upshot I find that this appeal is devoid of merits. Therefore, I uphold the decision of the District Land and Housing Tribunal for Kisarawe in Land Application No.04 of 2023. Consequently, the appeal is hereby dismissed. I make no order as to costs. It is so Ordered. 16