Land Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT DAR ES SALAAM LAND APPEAL NO 21148 OF 2024 (Originating from Land Application No 122 of 2019 of Kibaha District Land and Housing Tribunal)

BETWEEN DICKSON ERNEST SALEMA................................... 1st APPELLANT AGNESS A. CHEREHANI (Administratrix of the Estate of the Late Peter John Msuya)....................................................... 2nd APPELLANT

VERSUS ANDREW FUNGAMALI.......................................... 1st RESPONDENT JOEL MSETI MASENDA....................................... 2nd RESPONDENT SAMWEL MARIGO................................................. 3rd RESPONDENT

JUDGMENT Date of last Order: 06/11/2024 Date ofJudgment: 18/11/2024 LALTAIKA, J. The Appellants herein DICKSON ERNEST SALEMA and AGNESS / A. CHEREHANI (Administratrix of the Estate of the Late Peter John Msuya) are dissatisfied with the decision of the District Land and Housing Tribunal for Kibaha at Kibaha in Land Application No 122 of 2019. They have appealed to this Court by way of a Petition of Appeal containing the following grounds: Page 1 of 18 1. That, the trial tribunal had erred in law and fact by granting a counter claim in favour of the respondents while the said counter claim had never been prosecuted or heard during the trial.

2. That, the trial chairperson erred in law and facts by admitting sale agreement between Mussa Luhanga and Ha/ima Kambenga as exhibit U5 which was a photocopy without following procedures.

3. That, the trial chairperson erred in law and fact by holding that one Mussa Luhanga was a lawful owner of the suit premises while the said Mussa Luhanga had never come to testify before the Tribunal.

4. That, the trial chairperson erred in law and facts by supporting exhibit L)5 which was the sale agreement between Mussa Luhanga and Ha/ima Kambenga while the said sale agreement does not show the location of the suit premises.

5. That, the trial chairperson erred in law and facts by dealing with erroneous matters which were not roots of the case hence reaching into injustice decision. When the appeal was called for mention on the 30th day of September 2024 Mr. Godfrey Francis, learned Advocate appeared for the Appellants while also holding brief for Counsel for the 1st and 3rd Respondents Mr. Mlyambelele Abednego Ng'weli, learned Advocate. Parties opted for hearing by way of written submissions. With a node of approval by this Court, the following schedule was ordered: Appellant's written submission in chief to be filed on or before 15/10/2024, Respondents reply: 29/10/2024, Rejoinder if any: 6/11/2024, Mention for necessary orders: 6/11/2024 at 10:30 AM. I take this opportunity to register my commendations to counsel for their spotless compliance with the scheduled order. This sense of time management which is growing among Counsel in this country is essential Page 2 of 18 for enabling this Court to fulfil its Constitutional mandate of timely dispensation of justice. The next part of this Judgment is a summary of submissions by both parties, my analysis of the law and the verdict. It should be noted however that as per the Court records, appellant's documents were drafted by Mr. GODFREY F. ALFRED. I assume this is the same person as Godfrey Francis recorded above. I think Counsel should be

consistent with the use of their official names for consistence of Court records. Mr. Alfred, Counsel for the Appellants, began by informing the Court that the appellants intended to abandon the seventh ground of appeal while submitting on the remaining grounds. He commenced with the first ground, which asserted that the trial tribunal erred in law and fact by granting a counterclaim in favour of the respondents despite the counterclaim never being prosecuted or heard during the trial. He elaborated that counterclaim, governed by Order VIII Rule 9 of the Civil Procedure Code Cap 33 R.E. 2019, are treated as cross-suits, requiring proof under section 110 of the Evidence Act Cap 6 R.E.

2022. Mr. Alfred argued that the respondents’ success before the tribunal was based solely on the counterclaim, as stated on page 14 of the judgment, which he quoted: "Baada ya kusema hayo, maombi ya wadai Page 3 of 18 hayana mashiko yamekataliwa Madai kinzani ya wadaiwa yana mashiko." He further submitted that, apart from the counterclaim not being prosecuted or heard, it was raised solely by the fourth respondent, who was the third respondent in the appeal. He contended that the tribunal erred in finding merit in the counterclaim since the first and second respondents had not raised any such claim. He argued that the granting of the counterclaim in their favour constituted an irregularity, as it amounted to granting reliefs that were not prayed for. To buttress his argument, Counsel cited the case of Hotel Travertine Limited & 2 Others v. National Bank of Commerce [2006] T.L.R 133 to emphasize that courts can only grant what has been specifically prayed for. He concluded his submission on the first ground by praying that the ground be allowed and the tribunal's decision quashed. Addressing the second ground of appeal, Mr. Alfred argued that the trial tribunal erred in law and fact by admitting a photocopy of a sale agreement between Mussa Luhanga and Halima Kambenga as Exhibit U5 without following proper procedures. He explained that the respondents had tendered the photocopy to prove that they had purchased the suit land from Mussa Luhanga, who, in turn, had purchased it from Halima Page 4 of 18 Kambenga. Despite the appellants' objections, the tribunal admitted the document. He pointed out that, although courts and tribunals have the power to admit photocopies, this must be done in compliance with sections 67 and 68 of the Evidence Act Cap 6 R.E.

2022. He argued that the respondents had failed to notify the appellants of their intention to rely on the photocopy, as required by law, rendering its admission improper. He further contended that the tribunal's reliance on Exhibit U5 prejudiced the appellants. He concluded by praying that the second ground of appeal be allowed and the tribunal's decision quashed. Regarding the third ground, Mr. Alfred submitted that the trial tribunal erred in holding that one Mussa Luhanga was the lawful owner of the suit premises, despite Luhanga never testifying before the tribunal. He highlighted that the tribunal's conclusion, as indicated on page 14 of the judgment, was based on hearsay evidence from the respondents. He argued that it was essential for Luhanga to testify to prove his ownership before transferring the land to the respondents. To support this point, he cited the case of Ramadhani Rashidi Kuhuka v. Jela Maiko Meja and 44 Others, Land Case No. 25 of 2022. He concluded by praying that the third ground of appeal be allowed and the tribunal's decision quashed. Page 5 of 18 Turning to the fourth ground, Mr. Alfred argued that the tribunal erred by relying on Exhibit U5, the sale agreement between Luhanga and Kambenga, which failed to specify the location of the suit premises. He contended that the omission created doubt as to whether the agreement pertained to the disputed

land. He further argued that the tribunal relied on oral explanations from the respondents, contrary to section 101 of the Evidence Act, which prohibits oral evidence when a written agreement exists. He concluded that, since Exhibit 115 lacked essential details, the respondents' subsequent sale agreements derived from it were void, and he prayed that the fourth ground of appeal be allowed. On the fifth ground, Mr. Alfred asserted that the trial tribunal had dealt with erroneous matters unrelated to the framed issues of the case, namely the lawful ownership of the suit land and the reliefs parties were entitled to. He referred to specific findings in the judgment that, in his view, demonstrated the tribunal's deviation, resulting in an unjust decision. He prayed that the fifth ground be allowed. Lastly, Mr. Alfred addressed the sixth ground, arguing that the tribunal disregarded the valuable evidence of PW3, the seller of the land to the appellants. He noted that PW3 had demonstrated lawful ownership of the land and tendered a sale agreement (Exhibit P3), which identified Page 6 of 18 the suit premises. He further noted that PW3 sold the land to the appellants in 2008, before the respondents' alleged purchase from Luhanga. Despite this, Mr. Alfred contended, the tribunal failed to consider this evidence, resulting in an unjust decision. He concluded by praying that the

tribunal's judgment be set aside, the appellants declared lawful owners of the suit land, and costs awarded. Mr. N'gweli, counsel for the Respondents, on his part, contended that the appeal lacked merit because the Appellants had failed to substantiate their claims during the trial on a balance of probabilities when compared to the Respondents. He provided several reasons to support his submission that the grounds of appeal should be dismissed, characterizing them as "untargeted missiles." Firstly, he raised a legal point, asserting that the appeal was incompetent due to the failure to join Beda Albert, who had been the 3rd Respondent during the trial. He argued that this omission transformed the appeal into a new suit, contrary to the trial tribunal’s proceedings and records. Mr. N’gweli emphasized that leave of the Court was required to exclude a party, and since no such leave had been obtained, the appeal was fundamentally flawed. He cited the decision in Jenga Said & 258 Others v. Blanket Manufacturer and Others, Civil Application No. Page 7 of 18 668/01 of 2021 (unreported), to support his argument that altering the parties in proceedings without leave constituted illegality. Regarding the first ground of appeal, Mr. N'gweli noted that the Appellants' arguments diverged from the essence of the ground raised. He pointed out that, while the Appellants initially claimed no

counterclaim was filed, they later conceded the existence of a counterclaim by the 3rd Respondent. He explained that a counterclaim does not need to be addressed separately from the main suit. Moreover, he highlighted that the 1st and 2nd Respondents had sought to be declared owners of their portions of the disputed land in their written statements of defense, which the trial tribunal correctly granted in line with the agreed issues guiding the proceedings. He cited the High Court decision in Azaria Hosea Nsemwa v. Juma Hassan Makorongo, Land Appeal No. 389 of 2023 (unreported), to emphasize that reliefs granted must align with the parties' pleadings. Turning to the second ground of appeal, which challenged the admission of Exhibit U5, a photocopy of a sale agreement, Mr. N'gweli dismissed the claim as baseless. He explained that the original sale agreement was lost, as evidenced by a police loss report. Therefore, Counsel averred, the tribunal properly admitted Exhibit U5 collectively Page 8 of 18 with the report. He referred to Regulation 10 of the Land Disputes Courts Regulations, which allows tribunals to accept documents without strictly adhering to procedures under the Civil Procedure Code or the Evidence Act. He also invoked Section 68 of the Evidence Act to illustrate circumstances where secondary evidence can be admitted without prior notice. Addressing the third

ground, Mr. N'gweli argued that the trial tribunal correctly recognized Mussa Luhanga as a lawful owner of the land, despite his absence as a witness. He emphasized the testimony of SU4, a local leader, as reliable and corroborated by other Respondent witnesses. He noted that local leaders are better positioned to provide accurate information about land ownership in their jurisdictions. Furthermore, he criticized the Appellants for failing to bring credible local witnesses to support their case. On the fourth ground, Mr. N’gweli defended the trial tribunal's reliance on Exhibit U5, asserting that it sufficiently identified the location of the land in dispute. He contrasted this with Exhibit P3, relied upon by the Appellants, which he argued was void and inconsistent with their pleadings. He concluded that the tribunal's decision to rely on Exhibit U5 was correct, given the balance of probabilities. Page 9 of 18 In response to the fifth ground, Mr. N’gweli maintained that the trial tribunal dealt strictly with matters within the law. He criticized the Appellants for deviating from their pleadings, emphasizing the principle that parties are bound by their pleadings, as articulated in Agatha Mshoti v. Edson Emmanuel, Civil Appeal No. 121 of 2019 (unreported). He argued that such deviations undermined the credibility of the Appellants' case. Regarding the sixth ground, Mr. N’gweli

dismissed the value of PW3’s evidence, noting that Exhibit P3 lacked the signatures of the vendor and purchaser, rendering it invalid. He cited the case of Farah Mohamed v. Fatuma Abdallah [1992] TLR 21, asserting that a party cannot transfer a title they do not possess. Finally, Mr. N’gweli noted that the Appellants had failed to submit arguments on the seventh ground of appeal, implying its abandonment and underscoring the trial tribunal’s well-reasoned judgment. Mr. Alfred, Counsel for the Appellants, in his rejoinder submission, noted that the counsel for the respondents had raised a point of law, asserting that the appeal was incompetent due to the failure to join one Beda Albert, which, according to the respondents’ counsel, Page 10 of 18 rendered the appeal a new suit contrary to the trial tribunal's proceedings and records. Mr. Alfred contended that the respondents' argument was misplaced at this stage, as no preliminary objection had been raised by the respondents to that effect. He referred to the case of Registered Trustees of the Baptist Convention of Tanzania v. James Kasomi & Others, Misc. Civil Application No. 35 of 2021, reported in TanzLii, where the court refrained from entertaining a preliminary objection due to the lack of prior notice. He further argued that the appeal could not be deemed incompetent for failure to join Beda Albert, as the trial

tribunal's judgment indicated that Beda Albert, who had been the third respondent, was removed from the dispute after compromising with the applicants. Therefore, Beda Albert was not a party to the suit and was not covered by the judgment and decree being appealed. He also distinguished the case of Jenga Said & 258 Others cited by the respondents, asserting that it involved additional parties who were not part of the appeal, which made it inapplicable to the current case. Mr. Alfred submitted that the respondents' counsel had failed to respond substantively to the appellants' arguments and maintained that the appellants relied on their submission in chief, along with the rejoinder. Page 11 of 18 Addressing the first ground of appeal, he observed that the respondents' counsel had admitted that the first and second respondents did not file any counterclaim. However, he argued that the trial tribunal's decision, which declared the respondents as lawful owners, was based on a counterclaim that was never filed, making the tribunal's judgment erroneous. Regarding the second ground of appeal, he noted that the respondents' counsel had admitted that no notice was filed to notify the appellants about the use of secondary evidence. He argued that the additional list of documents filed by the respondents was not the appellants' concern. He pointed out that while the respondents'

counsel relied on section 65(g) of the Evidence Act, the trial tribunal had not cited this provision when admitting Exhibit U5. This failure rendered the admission of the exhibit procedurally flawed. On the third ground of appeal, Mr. Alfred emphasized that the respondents' counsel admitted that one Mussa Luhanga had not testified before the tribunal. He argued that the testimony of SU4, a local government leader, was insufficient to establish ownership of the disputed land by Mussa Luhanga, as it was hearsay evidence. Page 12 of 18 Addressing the fourth ground, he noted that the respondents' counsel had failed to reply to the appellants' concern that Exhibit U5 did not show that the sold land was located at Kiluvya A, Kisarawe District, Coast Region. He contended that the reference to "Halmashauri ya Kijiji cha Tondoroni" on the exhibit did not suffice to prove the location of the land, as the disputed land was physically located in Kiluvya A. Concerning the fifth ground, Mr. Alfred argued that the trial tribunal based its decision on matters outside the issues framed, a concern the respondents' counsel failed to address. Instead, the respondents' counsel discussed the principle that parties are bound by their pleadings, which was not raised by the appellants. On the sixth ground, he reiterated that the appellants' seller of the land, PW3, had testified that he sold the land

to the appellants in 2008, a time when the respondents had not yet acquired the disputed land. This crucial argument, Mr. Alfred averred, was not addressed by the respondents' counsel, who instead focused on the issue of the signature on Exhibit P3, which Mr. Alfred deemed irrelevant. Page 13 of 18 In conclusion, Mr. Alfred humbly prayed that the court allow the appeal, set aside the trial tribunal's decision and judgment, and award costs to the appellants. I have dispassionately considered the rival submissions in the light of the grounds of appeal. I have also thoroughly examined the trial Tribunal's records. The following issues arise for determination: 1. Whether the appeal is incompetent for failing to join one Beda Albert.

2. Whether the trial tribunal erred in basing its decision on a counterclaim that was neither pleaded nor formally filed.

3. Whether the trial tribunal erred in admitting Exhibit U5 without adhering to the procedural requirements of the Evidence Act.

4. Whether the testimony of SU4 regarding the ownership of Mussa Luhanga constituted inadmissible hearsay evidence.

5. Whether the trial tribunal's decision improperly relied on matters outside the framed issues.

6. Whether the appellants established their claim of first occupation of the disputed land. On the first issue, the respondents argued that the appeal was incompetent for failing to join one Beda Albert, asserting that his absence rendered the appeal akin to a new suit. In support, the respondents cited Jenga Said & 258 Others v. Blanket Manufacturer & Others, (Supra) Page 14 of 18 The appellants countered that the argument was both misplaced and untimely, as no preliminary objection had been raised on this issue. They referred to Registered Trustees of the Baptist Convention of Tanzania v. James Kasomi & Others, (supra), which emphasized the requirement for prior notice of preliminary objections. Additionally, the appellants pointed to the trial tribunal's records, which showed that Beda Albert had been removed from the case after compromising with the applicants. I find merit in the appellants' argument. The trial tribunal's judgment explicitly excludes Beda Albert as a party to the proceedings, and the respondents have failed to demonstrate how his nonjoinder prejudices this appeal. Furthermore, objections concerning procedural irregularities must be raised in accordance with established practice, including notice requirements. This ground, therefore, fails. Coming to the highly contested issue of the counterclaim, I must admit that the same has exercised my mind quite a

bit. I almost got "lost to translation" to borrow a line from a popular movie. In Kiswahili, it is not immediately clear that Madai kinzani ya wadaiwa yana mashiko refers specifically to a counterclaim or counterarguments in general throughout the trial. Nevertheless, both Advocates seem to be Page 15 of 18 on the same page as far as the semantics are concerned. The appellants contended that the trial tribunal's decision was erroneously based on a counterclaim that was never filed by the respondents. The respondents, on their part, argued that their prayers for ownership, as set forth in their written statement of defense, sufficed as a counterclaim. Having reviewed the tribunal's records, it is evident that the tribunal's judgment explicitly referenced a counterclaim as the basis for awarding ownership to the respondents. However, the absence of a formally filed counterclaim, as admitted by the respondents, undermines this finding. The law is clear that a counterclaim must be formally pleaded and properly filed for it to constitute a valid basis for relief. This ground of appeal succeeds. On admission of Exhibit U5, the appellants challenged the trial tribunal's admission arguing that it failed to comply with the procedural requirements of the Evidence Act. They emphasized that the tribunal did not invoke section 65(g) of the Act when admitting the exhibit. The respondents

conceded that the tribunal did not expressly cite section 65(g) but argued that the document was admissible under the said provision. Page 16 of 18 I find that procedural compliance in admitting evidence is fundamental to ensuring fairness in adjudication. The trial tribunal's failure to explicitly invoke the applicable statutory provision raises questions about the propriety of admitting Exhibit 115. Consequently, this ground also succeeds. On hear-say, evidence, the appellants argued that the evidence of SU4, a local government leader, regarding the ownership of one Mussa Luhanga was hearsay and lacked probative value since Mussa Luhanga did not testify. The respondents contended that SU4's testimony was sufficient to establish ownership. Hearsay evidence is generally inadmissible unless it falls within recognized exceptions. In this case, SU4's testimony was not corroborated by direct evidence from Mussa Luhanga, whose testimony was critical to the respondents' claim. I find that the evidence of SU4 lacks probative value. This ground of appeal is upheld. The appellants further argued that the tribunal's decision was based on matters outside the framed issues. The respondents did not provide a substantive response to this argument. A tribunal is bound by the issues it frames, and it is improper for a judgment to stray beyond those boundaries. Upon review, I find that the

tribunal indeed relied on Page 17 of 18 extraneous matters in its decision-making. This constitutes a procedural irregularity, and the appellants are justified in their complaint. Lastly, on occupation of the suit land, the appellants contended that they were the first to occupy it, as their seller (PW3) testified that the land was sold to them in 2008, prior to the respondents' acquisition. The respondents did not provide a convincing rebuttal, instead focusing on the signature on Exhibit P3. The evidence on record supports the appellants' claim of first occupation. The tribunal erred in failing to properly evaluate this evidence. Accordingly, this ground is also upheld. In the upshot, the appeal is hereby allowed. The decision and judgment of the trial tribunal are set aside, and the respondents' claims are dismissed. The respondents shall bear the costs of this appeal. It is so ordered. I. LALTAIKA

JUDGE 18/11/2024 Court Judgment delivered in Chambers this 18th day of November 2024 at 14:45 PM in the presence of Mr. Godfrey Francis Alfred, Counsel for the Appellants who also held brief for Mr. Mlyambelele Ng'weli Counsel for the Respondents and the 1st and 2nd Respondents. Page 18 of 18