DUNIA JOSEPH

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000023494 OF 2024 DUNIA JOSEPH KAZABULA(THE ADMINISTRATOE OF THE ESTATE OF THE LATE HUSSEIN BEATUS CHIKALE) .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ADRIANO EDWIN MUYAGA .............................. RESPONDENT / DEFENDANT EDWIN MUYAGA .............................. RESPONDENT / DEFENDANT MWAJUMA NYAMWELU .............................. RESPONDENT / DEFENDANT JUDGMENT KAHYOZA, J, The present Appellant sued the three Respondents before the District Land and Housing Tribunal (DLHT) for Kasulu at Kasulu. The matter was in respect of an unsurveyed parcel of land measuring half an acre located at Kimobwa within Kasulu township. After a full trial, the DLHT decided in favour of the Respondents. Dissatisfied, the Appellant has knocked at the doors of this court in a further bid to contest for his rights. He has filed a memorandum of appeal containing the following grounds of appeal: 1. That, the trial chairman grossly erred both in law and fact by relying on unexecuted sale agreement regarding the disputed land tendered by the 3rd Respondent eventually declaring respondents lawful owners of the disputed land. 2. That, the trial chairman erred both in law and fact for declaring the respondents lawful owners of the disputed land despite contradicted evidence between DW1 and DW3 on the year of sale of the disputed land. 3. That, the trial chairman erred both in law and fact for relying on the hearsay evidence of DW1 to trust that initially the disputed land was acquired by the father of DW1 the late Muyaga Kihuha and later the late Muyaga Kihuha accommodated the late Hussein Chikale and his whole family. 4. That, the trial chairman erred both in law and fact for considering strength and credibility of the evidence adduced by appellant and his witness in the course of hearing the case hence making unfair decision. 5. That, the trial chairman erred both in law and fact for appreciating poor and weak evidence adduced by the respondent hence declaring them lawful owners of the disputed land. Page. 1 The facts as gathered from the record of the trial court can be briefly put as follows. Sometime in 1980 one Hussein Chikale acquired the disputed land by way of grabbing it. It was in Kimobwa ward. He planted trees including banana trees, built three houses and lived there up to 2000. In 2000 he moved to Murusi ward and started living there. He left behind his land at Kimobwa. According to the record, he left it to a care taker, one Halije. It is further on record that the said care taker died in 2013 and that is when the Respondents are said to have trespassed over the land thus leading to the present dispute. At the hearing, the Appellant was represented by Ms. Mechtilda Mpeta, advocate. On the other hand, the first and second Respondents were unrepresented, while the third Respondent did not appear, and as such hearing proceeded in her absence. With regard to the first ground of appeal, Ms. Mpeta submitted that the trial DLHT erred for relying on the sale agreement tendered by the 3rd Respondent. This was wrong because section 63(2) of the Land Act, Cap 113 provides that for rights in land to pass, the contract must be signed both by the seller and purchaser. But the contract in question was not signed by the seller. As such the sale agreement was of no effect and no rights passed. On the second ground, the learned counsel submitted that the trial tribunal erred in law in declaring the Respondents the rightful owners of the suit land notwithstanding the fact that there were contradictions between DW1 and DW2 in relation to the year the suit land was purchased by the third Respondent. She pointed out that while the first Respondent told the trial tribunal that sale was executed in 1990, the third Respondent told the trial tribunal that sale was done in 1999. According to the learned counsel this is a material contradiction showing that the land in dispute did not belong to the Respondents. On the third ground, it was submitted by the learned counsel that the trial tribunal erred for relying on hearsay evidence adduced by the first Respondent who told the tribunal that the suit land belonged to his father, one Muyaga Kihuha, and that it was this Kihuha who invited Hussein Chikale onto the land with his entire family. The learned counsel was of the view that by the time Chikale is said to own the land, the first Respondent was living at Kigoma. As such it was not possible for him to know what was transpiring in relation to the suit land. According to the learned counsel, this is contrary to section 62 of the Tanzania Evidence Act. On the fourth ground, Ms. Mpeta submited that the DLHT erred for not considering the Appellant’s evidence hence arriving at a wrong decision. According to the learned counsel the evidence showed that the late Huseein Chikali owned the suit land since 1980, just by grabbing it. He lived there up to 2000 when he moved to Murusi to his children due to health problems. He left his land under the supervision of one Harije, his niece, wife of Muyaga Kihuha, DW1's father. This Harije used the land up to 2013 when she passed away. At this point, the late Hussein came back to his land but only to learn that the same was already taken over by the Respondents. On the last ground, Ms. Mpeta submited that the trial DLHT relied on weak evidence to decide in favour of the Respondents. She pointed out that the testimony of the first Respondent was hearsay evidence while the evidence of the third Respondent was based on the sale agreement that was never signed by the seller. Page. 2 She further submitted that even the evidence of the second Respondent was not reliable because he said he was given the suit land as a gift. All this taken in totality show that their case was weak. It was therefore wrong for the trial DLHT to decide in their favour. On his part, the First Respondent addressed all the five grounds together. He submitted that the Appellant was not entitled to fault the trial tribunal because he failed to produce key witnesses. As such the tribunal decided in accordance with the evidence that was before it. He further submitted that he owned the land since 2008 and the Appellant never took any step up to 2019. The second Respondent also addressed all the grounds of appeal together. He submitted that the trial tribunal never erred because the late Hussein Chikale never grabbed the land but he was accorded temporary accommodation by the late Muyaga Kihuha. He also dismissed the allegation that the disputed land was left to Harije as a care taker, because if this was the case, then she could not have witnessed the sale agreement. In her rejoinder, Ms. Mpeta submitted that the issue of the Appellant not producing key witnesses was immaterial because both Hussein Chikale and his wife passed away before they could testify. As to the argument that Harije witnessed the sale agreement, Ms. Mpeta submitted that that too was immaterial because the sale agreement itself was not signed both by the seller and buyer. I have carefully and dispassionately considered the rival submissions, and I have also visited the entire record of the trial tribunal, I shall now proceed to determine whether the appeal is merited or not. As for the complaint in the first ground, I don’t see justification in this complaint. The sale agreement, exhibit D1 before the trial tribunal was tendered by the third Respondent. Its admissibility was never objected to. The Appellant is therefore estopped from challenging it at this stage. I am aware that he raised some questions on it, but since it was admitted without any objection, I do not see why concerns are raised at this appeal stage. The learned counsel has submitted that the document, exhibit D1 offends section 63 (2) of the Land Act, Cap 113 R. E 2019. But I think this argument is in one way or another misplaced. It must be borne in mind that the said sale agreement, exhibit D1 was executed before the Land Act became operational. The land Act came into operation on May 1st, 2001 vide GN 484 of 2001. As such section 63(2) of the said act was not applicable in the circumstances. It must also be noted that the sale agreement was executed by lay persons whose emphasis was for the witnesses of both sides to sign. I believe that is what happened, and it would be against all odds to question the authenticity of the document at this hour. For that reason, I find no merit in ground one. It is accordingly dismissed for want of merit. The complaint in ground two is that there were contradictions amongst the respondents in relation to the year when the third Respondent purchased the suit land. The first Respondent mentions the year 1990 while the third Respondent mentions the year 1999 as the year when she purchased the suit land. The Respondents did not address this point. But I think that is understandable because they are lay persons. Just as was the case with the trial tribunal, I do not intend to accord this issue more weight. This is because, in my view, the alleged contradiction is cosmetic. It does not go to the core of the matter. The third Respondent is the one Page. 3 who purchased the land. She told the trial tribunal that she bought the same in 1999. This was also supported by exhibit D1, the sale agreement. So, if the first Respondent spoke of a different year, this in my humble view did not vitiate the Respondents’ case as it does not go to the core of the matter. Courts have always held that in case of contradictions or inconsistences, the court must determine whether such contradictions are minor or are major contradictions to the extent of going to the root of the matter. In Mohamed Said Matula v. Republic (1995) TLR no. 3 the CAT stated: “Where the testimony by the witnesses contains inconsistencies and contradictions ... the court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the root of the matter" It would appear the trial tribunal did not address itself on this issue. But this being the first appellate court, I am entitled to re-assess the evidence and come up with a proper finding and decision. See Millenium Coach Limited vs Africarriers Limited (Civil Appeal 323 of 2019) [2022] TZCA 392 (27 June 2022). In this case the Court of Appeal stated this principle in the following words: Before we proceed any further, we wish to restate the position of the law that a first appeal is in the form of re- hearing where the appellate court is entitled to re-evaluate the evidence on record from both sides and if possible, to come up with its own conclusion. See also Makubi Dogani v. Ndogongo Maganga, Civil Appeal No.78 of 2019; Leopold Mutembei v. Principal Assistant Registrar ofTitles, Ministry of Lands, Housing and Urban Development andAnother, Civil Appeal No. 57 of 2017; and Domina Kagaruki v.Farida F. Mbarak and Five Others, Civil Appeal No. 60 of 2016. But again, that aspect might be attributed to the limitations of human memory, especially when there is lapse of time such as in the present circumstances where a period of almost twenty years or more has lapsed. In Alex Ndendya vs Republic (Criminal Appeal No. 207 of 2018) [2020] TZCA 202 (6 May 2020) the Court of Appeal while addressing a similar situation, it made reference to the decision in Evarist Kachembehom & Others v. Republic, 1978 LRT where it was observed: "Human recollection is not infallible. A witness is not expected to be right in minute details when retelling his story" In the same case, the Court also quoted an excerpt from the learned authors of Sarkar, the Law of Evidence, 16th Edition, at p. 48 which excerpt is reproduced here below: "Norma! discrepancies in evidence are those which are due to normal errors o f observation normal errors o f memory due to lapse o f time, due to mental disposition such as shock and horror at the time o f the occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are Page. 4 those which are not expected o f a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility o f a party's case, material discrepancies do." In the same vein, I find and hold that the contradictions complained of by the learned counsel are minor contradictions which did not corrode the Respondents’ case. For these reasons, the second ground is bound to fail and so it does. As regards the remaining grounds, that is the third, fourth and fifth grounds, I shall tackle them together as they appear to be closely related. The complaint the third ground is that the trial tribunal in reaching its decision, it relied on hearsay evidence adduced by the first respondent. In the fourth and fifth grounds, the complaint relates to the strength of the Appellants evidence on one hand and the weakness of the Respondents’ evidence on the other. As pointed out earlier, Ms. Mpeta faulted the trial tribunal for founding its decision on hearsay and weak evidence of the Respondents while ignoring what she calls strong and credible evidence adduced by the Appellant and his witnesses. She cemented this argument by pointing out that the first Respondent testified to the effect that the suit land belonged to one Muyaga Kihuha, while by that time the first Respondent was living at Kigoma, and as such he was not in the position to know who the real owner of the suit land was. On their part, the Respondents are of the view that the decision of the trial tribunal cannot be faulted as it is based on the evidence that was adduced before it. They added that the trial chairman carefully considered the evidence before him, because if at all the disputed land was left to Harije as a care taker, how then did she take part in selling the said same land, that is, by witnessing the sale agreement. Looking at the complaint in ground three, I do not see any merit in it. The decision of the trial tribunal is not pegged on the testimony of the first Respondent. This is reflected at pages 5,6 and 7 of the judgement. At page five of the judgement, the trial chairman discussed the evidence adduced by the Appellant but found it supporting the Respondents’ case. At page six of the judgement, he clearly points out how PW4 supported the Respondents’ case when he testified to the effect that he happened to see the first Respondent build his house on the suit land way back in 2002. This totally contradicts the Appellant’s claim that the Respondents trespassed on the suit land in 2013. The trial chairman also dismissed the possibility of Halije being a care taker of the suit land at any point in time as alleged by the Appellant, because if that was the case she could not have taken part in the sale of the said suit land as she was among the witnesses who witnessed the sale as per exhibit D1. It is further demonstrated that according to the sale agreement, the sale was executed in 1999 even before Hussein Chikale moved to Murusi. In the words of the trial chairman as reflected in the judgement at page 5, he characterizes the evidence of the Appellant before the DLHT as a ring of falsehood, which did not establish his case. Page. 5 But again, it is also indicated at page 6 of the judgement that even assuming the Respondents were trespassers, yet they are taken to have acquired the suit land through adverse possession as they had continuously occupied the same for the period exceeding twelve years. It is also added at that same page of the judgement that assuming the land initially belonged to the Appellant, there was ample evidence showing that he had abandoned it. All These show that the trial chairman critically analyzed the evidence before him and arrived at a conclusion that was justified by the evidence adduced. This therefore clearly shows that the decision of the trial tribunal was not pegged on what the Appellant calls hearsay evidence by the first Respondent. Rather, it was based on some legal principles as elaborated in the judgement and also on the totality of evidence as was put before the tribunal. It is for these reasons I also find no merit in grounds three, four and five. In the final analysis and for the reasons stated, I find the entire appeal devoid of merit. It is accordingly dismissed with costs to the Respondents. Right of appeal to the Court of Appeal of Tanzania is duly explained. Dated at KIGOMA this 4th of March 2025 . P. R KAHYOZA JUDGE OF THE HIGH COURT Page. 6