LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA LAND APPEAL NO. 29 OF 2023 ELI DAD I GODWIN LUKILA APPELLANT VERSUS ESTER GODWIN LUKILA (Administrator of the estate of the late GODWIN LUKILA) RESPONDENT (Appeal from the Judgment and decree of the District Land and Housing Tribunal for Kasulu at Kasulu) (Maurice Egbert Sekabila, Chairperson) Dated 28th day of April 2023 In (Land Application No. 6 of 2023) JUDGMENT Date: 01/08 & 25/10/2024 NKWABI, J.: The appellant lost his land application in the trial tribunal where he had sought the following reliefs: . 1. It be ordered that the applicant owner of piece of land with Number 340 Block "N" Murubona. 2. The applicant be paid T.shs 6,000,000/= compensation for having his house and business rooms closed, destruction ( uharibtfu) and lost properties (sacks of seed residues - magunia ya Mashudu, 1 padlocks, tables, chairs etc.) and unnecessary consumption of electricity. 3. Costs of the application. 4. Any other reliefs the honourable tribunal would deem fit to grant. The application was heard on merit. Judgment was delivered in favour of the respondent who was declared owner of the disputed piece of land. The land application was dismissed with costs. The appellant and the respondent are siblings. The respondent is administratrix of the estate of their late father one Godwin Lukila who died on 28/12/2021. The appellant objected, during the administration of the estate proceedings, the premises from being included in the estate of the deceased saying that the premises/plot is his property. Mediation in Murubona ward tribunal failed hence the dispute was lodged in the District Land and Housing Tribunal whereby the outcome was as I have just indicated above. In this appeal, the appellant preferred five grounds of appeal. I will emulate them just as they were listed by the counsel for the appellant. 1. That, the trial tribunal erred in both law and fact in declaring the respondent as the lawful owner of the suit property while the 2 evidence did not prove so on a balance of probabilities and the respondent did not plead ownership by way of counterclaim. 2. That, the trial tribunal erred in both law and fact for failure to scrutinize the cogent evidence as it was adduced by the appellant which shows that the appellant is the lawful owner of the suit property. Hence relied upon the weak and flimsy evidence that was adduced by the respondent and declared him as the lawful owner of the property. 3. That, the trial tribunal erred in both law and facts by holding that land rents receipts (Exhibit Pl & Exhibit P.2) which are on the appellant's name did not prove ownership be the appellant. And thus, the same were opposed by exhibit D1 (Official Search report) while the land rents receipt proved ownership by the appellant and the official search report (D1) did not state as to who is the lawful owner of the suit property and the same advised the respondent to go to Kasulu Town Council to make inquiries as to ownership of the suit property. 4. That, the trial tribunal erred in both law and facts by holding that the appellant credibility as per exhibit D2 , D3 and D5 was impeached on the ground that in the exhibits appellant claimed to have been given the suit property by one Pius while in the alleged 3 exhibits there is nowhere where the appellant claimed to have been given the suit property by the said Pius rather in the said suits appellant was claiming the suit property to be his sole property and not part of the estate of their deceased father. 5. That, the trial tribunal erred in both law and facts by declaring the respondent as the lawful owner of the suit property on the ground that the evidence by DW7 and DW8 was uncontested by the appellant while their evidence did not prove if the suit property is the property of the deceased person and their evidences were doubtful and there was a prior denial by the appellant that the suit property is not forming the estate of his deceased father. It is on account of the above grounds of appeal the appellant is asking this Court to grant him the following reliefs: 1. That this appeal be allowed. 11. That the appellant be allowed to tender additional evidence an official search report from Kasulu Land Registry. 111. The decision of the district land and housing tribunal be quashed and set aside. iv. That the suit property be declared as the lawful property of the appellant. 4 v. Costs of this appeal and those incurred by the appellant in the trial tribunal. vi. That any other reliefs that this honourable Court deems fit and just to grant. The appeal was heard by way of written submissions. The appellant had his written submissions drawn and filed by Mr. Moses Karwani Rwegoshora, learned counsel. The reply submission for the respondent was drawn and filed by Mr. Kalimunda Venance Yugalila, also learned counsel. I am grateful for their submissions. I kick start my deliberation and determination of the appeal by the 1st ground of appeal which is that, the trial tribunal erred in both law and fact in declaring the respondent as the lawful owner of the suit property while the evidence did not prove so on a balance of probabilities and the respondent did not plead ownership by way of counterclaim. The counsel for the appellant among other things, in expounding the ground of appeal, contended that the official search exhibit D.l was not pleaded by the respondent in his written statement of defence and the exhibit does not show who is owner of the plot in question. So were the Exhibit D2, D.3 D4 and D5 not pleaded in the written statement of defence. He cited Yara Tanzania Limited v. Ikuwo General 5 Enterprises Limited, Civil Appeal No. 309 of 2019 CAT where it was held at page 15 that: '~ .. it is for the going reasons that we answer the second issue against the appellant and hold that for the reason of the document not being pleaded the trial judge was right I refusing to place reliance on it in determining the ,, SUIt ... Regarding the oral evidence of witnesses of the respondent, the counsel for the appellant argued that the respondent did not prove how their deceased father acquired the land. She did not tender any documentary evidence to prove ownership by their deceased father. Too the suit property was not described. Even DW.4 did not state as to how their father acquired the suit property. It is added that the respondent ought to have filed a counterclaim which she did not file, which is a requirement in Melchiades John Mwenda v. Gizelle Mbaga (administratrix of the estate of the estate of John Japhet Mbaga) & 2 Others, Civil Appeal No. 57 of 2018, CAT at page 24 25 where it was stated that: 6 " the evidence did not prove so on a balance of probabilities sna. seconds; the second respondent did not plead ownership by way of counterclaim. It is elementary law which is settled in our jurisprudence that the court will grant only a relief which has been prayed for - see James Funke Gwagilo versus Attorney General [2004] T.LR. 161 and Hotel Travertine Limited & 2 Others v. Natlona Bank of Commerce Limited [2006] T.LR 133. .. . If the second respondent thought he had any claims against the appellant in terms of Order VIII of the Civil Procedure Code/ Cap 33 of the Revised Edition/ 202,Z he should have raised a counter claim in which he would set out all the material facts on which he relied in support thereof with the same particulars as he would as a plaintiff in an independent suit - see Mui/a: The Code of Civil Procedure. Clinging on the appellant's prayers as he did instead of just stating in his defence that the appellant's prayers be re/used. was inappropriate and the trial court erred in granting such a relief. /F He prayed the ground of appeal be allowed for having merit. 7 In reply submission, the counsel for the respondent argued that the respondent had cogent evidence that the land belonged to Godwin Lukila, the deceased and witnesses proved to that effect by long use of the suit land by the deceased. There was also the official search. DW2, wife of the deceased testified that the piece of land belonged to the deceased. But the appellant had contradictory evidence that the piece of land was given to him by a brother called Pius, but later changed story and said was given as a gift by Christopher Kitumbu @ Bomoa. He invocated the doctrine of estoppel under section 123 of the Evidence Act. The counsel for the respondent too relied on Regulation 10 (1) and (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, G.N. No. 174 of 2003 which permits the chairperson (may) to receive documents which were not annexed, on the first hearing or subsequent hearing. He referred me to the case of Erasto Ngailo v. Blastus Allen Mgimwa, Miscellaneous Land Application No. 15 of 2022, HC. He distinguished the case of Yara (supra) because its principle originates from Civil Procedure Code. Concerning the granting the relief which was not prayed in a counter- claim, the counsel for the respondent said that the reliefs were prayed 8 during the trial and that was enough. He prayed the ground of appeal be dismissed for being baseless. In the rejoinder submission, the counsel for the appellant reiterated his stance in the submission in chief. I have considered the arguments of both parties and the record. I agree that it was wrong for the trial tribunal to have granted substantive reliefs which were prayed in the trial, because that goes against the rules as to pleadings as the parties and the court are bound by the pleadings. That approach too was contrary to principle enunciated in the case of Melchiades (supra). The 1st ground of appeal is allowed based on this reason, I need not discuss the rest of the justifications stated in the 1st ground of appeal. The discussion on this ground of appeal goes to answer the 5th ground of appeal. Next, I consider 2nd and 3rd grounds of appeal the which are that the appellant had cogent evidence that he is owner of the disputed piece of land and that it was wrong for the trial tribunal to have held that the land rent receipts did not prove the ownership of the piece of land by the appellant. It was stressed that the appellant was given the piece of land by the late Bomoa and it was surveyed in 2014 as plot No. 340 Block N. Murubona and in 2015 started paying land rent as per exhibit P.2. He has 9 been using the land since 1996. He pressed, the appellant had heavier evidence than that of the respondent. He cited the case of Consolata Daud Mallya v. Methew Silayo, Land Appeal No. 16 of 2022 HC on proof by receipts which was accepted therein. He also argued that the certificate of occupancy was locked in the building by the respondent. He invited this Court to evaluate the evidence. The counsel for the respondent replied that land rent receipts do not prove ownership citing the decision of this Court in Zuhura Musa v. Anastazia Chaha & 3 Others, Land Case No. 10 of 2022 which referred to the case of The Registered Trustees of Joy in the Harvest v. Hamza K. Sungura, Civil Appeal No. 149 of 2017 CAT at p. 12 to 13 where it was stated that: "We must pose here and clarify one point. that is receipts that were tendered to show that the respondent was paying land rent in respect of the disputed property, cannot be legally considered conclusive proof vesting title or conferring ownership of the disputed property to the respondent. H He said, the claim that certificate of occupancy was locked by the respondent need not be taken seriously. He prayed the 2nd and 3rd 10 grounds of appeal be disregarded. In rejoinder submission, the counsel for the appellant reiterated his submission in chief and added that he did official search and that is why he prays for additional evidence. He insisted that the certificate of occupancy was locked by the respondent. I have considered the arguments of both counsel for the parties. I am of the firm view that the 2 nd and 3rd grounds of appeal are unmerited. In the first place it is the plaintiff who has the duty to prove his case, the respondent had no duty of proving her defence. That burden of proof could not be flipped over to the respondent by the appellant, see Barelia Karangirangi v. Asteria Nyalwambwa, Civil Appeal No. 237 of 2017, CAT (unreported) where it was underlined that: ''It is similarly that in civil proceedings, the party with the legal burden also bears the evidential burden and the standard in each case is on a balance ofprobabilities. , ✓ The appellant, therefore, ought to have called the officer(s) who issued the certificate of occupancy if any or the letter of offer of a certificate of occupancy to testify. Because those witnesses were very material to testify on how and why they issued him with the letter of offer if any, but failed to call one, I accord adverse inference against him for such failure as per the guidance of the case of Mujuni Joseph Kataria v. Samwel 11 Ntambala Luangisa & Another [1986] T.L.R. 62 CAT where it was stated that: ''Failure to call material wimess. the court may draw adverse inference." It was a legal requirement for the appellant to have proved his allegations of owning the piece of land by letter of offer or a certificate of occupancy if any, as per Edward Petro v. Republic [1967] H.C.D. 296 where it was held that: ''.5. 61 of the Tanzania Evidence Act 1967 provides that all facts except the contents of documents may be proved by oral evidence. " The appellant ought to have issued a notice to produce to the respondent, if indeed, the respondent had locked in the building the relevant documentary evidence. Guidance on the notice to produce can be seen in Yohanis Msigwa v. Republic [1980] T.L.R. 289 (CAT) where it was stated that: ':S: 68 of The Tanzania Evidence Act 1967 is applicable even in criminal cases. S. 2 of The Tanzania Evidence Act 1967 is clear that the Act shall apply to all judicial proceedings in the appropriate courts. We fail to say why 12 S. 68 which relates to rules as to notice to produce should be confined to civ!I cases only. Where the Act distinguishes between criminal and civil matters as for example S. 3 (2) it says so clearly. '' Failure to issue the notice to produce coupled with the failure to tender the letter of offer or the certificate of occupancy if any I accord adverse inference against him as per Emmanuel Senyagwa v. Republic, Criminal Appeal No. 22/2004 (CAT) at Dar-es-Salaam (Unreported) at P. 7 where it was underscored that: "We think we are entitled to make an adverse inference from the failure to produce PFJ even after it was said that it was going to be tendered. That raises the question whether or not there was really sexual intercourse. If no, then there was no rape. " It is trite law that where a party is required to prove by documentary evidence, cannot be allowed to prove by oral evidence. That is the stance held in Zuberi Augustino Mugabe v. Anicet Mugabe [1992] T.L.R. 137 CAT and Alfred Fundi v. Geled Mango & Two Others [2019] T.L.R. 42 where, in the latter case, it was stated that: 13 "In the instant case, the Appellant had not produced any documentary evidence to substantiate and Justify the claim. As such therefore, there was no verifiable evidence to prove that the appellant incurred costs. There should have been proof that he actually sustained those injuries following the said accident and consequently he incurred specified costs and medical expenses for his injuries and such costs and medical expenses should have been supported by respective medical receipts. These supporting documents were not produced before the trial court." Failure to tender the documentary evidence required of the appellant, means the appellant failed to prove his case. Moreover, he gave contradictory accounts as to who gave him the piece of land whether it was Pius as he stated during the mediation stage at the Ward tribunal as depicted in exhibit D. l or Bomoa as can be depicted in his oral testimony in Court. In respect of additional evidence, that reminds me of a proverb that goes, "a drowning man clutches to a strew." It is increasingly clear to me that the appellant did not give any reason for this Court to permit him to tender 14 additional evidence. That violates the position of the law as stated in Buskined Fufula v. Nswanzi Fufula [1970] H.C.D. No. 107. (PC) Seaton J. where he held that: •~ .. appellate court should not without good reasons, take additional evidence when the parties have had ample opportunity to call witnesses in the trial court Otherwise, l!tigation will be endless. Where good reasons exist for calling additional evidence, they should be noted in the record. In the present case, no reasons were recorded and it is difficult to see if they existed. It seems to me to be unfair to allow the defendant who chose to remain silent during the trial to come before an appellate court and adduce his own testimony and that of his witnesses in rebuttal ofa case made out by the plaintiff in the court of first instance. Different considerations would arise if the defendant was prevented, through no fault of his own, in calling his witnesses at the trial or if the evidence came to the defendants notice for the first time after the trial. " (2) "There was ample evidence to support the appellants case. "(3) Appeal allowed. 15 Regarding the land rent receipts tendered by the appellant, I hold that that is not conclusive proof on ownership as was stated by the Court of nd rd Appeal in Sungura's case (supra). The discussion of the 2 and 3 grounds of appeal goes to determine the 4th ground of appeal to the effect that that it is not merited. The trial tribunal was right in holding that the appellant had failed to prove his claim of ownership. It is too dismissed. In the final analysis, I find that the appeal is worthy to be partly allowed to the extent that the respondent is held to have not proved his case ( owner of the disputed piece of land and had not pleaded it in a counterclaim). Judgment and the decree of the trial tribunal to the effect that the respondent is owner of the disputed piece of land are respectively quashed and set aside. I order that each party shall bear their own costs. It is so ordered. DATED at KIGOMA this 25th day of October 2024. 16