JUDGMENT ELIA MWAKILEMA VS SADI MBOLELO

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA LAND APPEAL NO. 95 OF 2023 CASE REFERENCE NO. 20231101000537524 (Originating in Application No.25 of 2022 in the District Land and Housing Tribunal for Mbarali at Rujewa dated 29th September 2023) ELIA AMBILIKLE MWAKILEMA ............................................. APPELLANT VERSUS SADI MBOLELO ................................................................. RESPONDENT JUDGMENT Date of hearing: 23/8/2024 Date of judgment:12/11/2024 NONGWA, J. The appellant in the capacity of administrator of the estates of the late Kulwa Mwakaliga sued the respondent in the District Land and Housing Tribunal for Mbarali at Rujewa in Application No. 25 of 2022 for recovery of 13.5 acres of property located at Ruiwa village within Mbarali district in Mbeya region (the suit property). He alleged that the late Mwakaliga was the owner who used the suit property after being allocated by the village government in 1960 to 1988 when his life expired. That the suit property was inherited by his daughter Sauda Mwakaliga who in 1994 invited the respondent to use the same. 1 The respondent disputed the claim through his written statement of defence, he alleged that was allocated the suit property by village government in 1986 and has used the same until in 2020. In a bid to prove the case the appellant testified as PW1 and called Amoor Ismail Mwangoto (PW2), Ayub Musa Hassan (PW3), Masoud Ally (PW4), Sauda Mwakaliga (PW5), Ramadhan Suleman Mbida (PW6) and Adija Mohamed (PW7). The respondent (DW1) on his side in addition to himself summoned three witnesses Fadhili Sadi (DW2), Rehema Sadi (DW3) and Abas Hassan (DW4). There were no documentary exhibits on each side. Upon full trial the tribunal found that the appellant had failed to prove his claim as required by the law, consequently the application was dismissed with costs. The above decision aggrieved the appellant who has filed memorandum of appeal on four grounds; one, that the learned chairman grossly erred in law and fact to enter judgment in favour of the respondent while the appellant proved his case at the standard required by the law; two, that the learned chairman grossly erred in law and fact to declare the respondent to be the lawful owner of the disputed property while he did not tender any document to prove acquisition of the disputed property; three that the judgment of the trial tribunal does not support 2 evidence available on the court record; and four, that the learned trail chairman grossly erred in law and fact for not evaluating and analysing properly the evidence in record, hence reaching the wrong decision. When the appeal came on for hearing parties appeared in person, had no legal representation. They prayed and were granted leave to argue the appeal by filing written submission. Arguing the first ground that that the appellant proved his case, the appellant reaffirmed the principle of burden of proof in civil case under section 110, 111 and 112 of the Evidence Act [Cap 6 R: E 2022]. He also cited the case of Stanslaus Rugaba Kasusura & Others vs Phares Kabuye [1982] TLR 338. He submitted that he managed to prove his case as the age of his witnesses was enough to know the background of the suit property, that he called neighbours and that all witnesses were indigenous of the area where the suit property is located and his evidence was heavier. He supported the argument with the case of Hemed Said vs Mohamed Mbilu [1984] TLR 113. The appellant contended that the respondent was invited to the suit property since 1995 and could not claim exclusive possession. He fortified the argument with the case of Samson Mwambene vs Edson James Mwanyingili [2001] TLR1. 3 In ground two that the respondent did not tender documentary proof of allocation, the appellant submitted that no documentary proof was produced to prove that the respondent was allocated land by the village government and that he failed to call neighbours. He added that it was not possible because all who were involved in allocating him were dead. Ground three and four were conjointly argued, the appellant submitted that the chairman failed to analyse and evaluate evidence in record and reached to the wrong decision. That evidence in record established that the suit property belonged to Kulwa Mwakaliga. The respondent instead of responding to written submission of the appellant as ordered, filed reply to memorandum of appeal. During rejoinder, the appellant submitted that the respondent had failed to counter his arguments in written submission but opted to file reply to memorandum of appeal. He insisted that he proved his case to the required standard. In determining the appeal at hand, all grounds are centered on ownership of the suit property between the contending parties. Each party contends to be the lawful owner. It is a cardinal principle of law that, in civil cases, the burden of proof lies on the party who alleges anything in his favour. 4 ‘110(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 111. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side.’ Ordinarily, in civil proceedings a party who alleges anything in his favour also bears the evidential burden and the standard of proof in terms of section 3(2) of the Evidence Act is on the balance of preponderance which means that, the court will sustain and uphold such evidence which is more credible compared to the other on a particular fact to be proved. The phrase preponderance of probabilities is explained the Indian case of Narayan Ganesh Dastane vs Sucheta Nayaran Dastane (1975) AIR (SC) 1534 which was approved in the case of Ernest Sebastian Mbele vs Sebastian Sebastian Mbele & Others, Civil Appeal No. 66 of 2019 [2021] TZCA 168 [ [2021] TZCA 168 (4 May 2021; TanzLII) that; ‘The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that ...a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought to act upon the supposition that it exists. A prudent man faced with conflicting probabilities concerning a fact 5 situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities, the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies.’ [Emphasize added.] Another principle is the rule of pleading. It is the position of the law that parties are bound by their pleadings and they cannot be allowed to raise new issues which are not backed by their pleadings unless by way of amendment, this was also stated in Ernest Sebastian Mbele (supra). In this appeal the appellant pleaded that the suit property formerly belonged to Kulwa Mwakhaliga who died in 1988 and then his daughter Sauda Mwakhaliga inherited it. On how the late Kulwa Mwakhaliga got the suit property, it was pleaded that was through allocation by the government. It was further pleaded that the respondent was invited in the suit property by Sauda Mwakhaliga in 1994. From the appellant’s pleading, it is noted that there was merger of cause of action that is allocate and inheritance. The appellant claims the 6 suit property belongs to Kulwa Mwakhaliga, at the same time, claim that Sauda Mwakhaliga has inherited it. In my view the two are different and cannot be merged in one suit. Be that it may, the appellant’s case theme was that the respondent was invited in the suit property by Sauda Mwakhaliga. The respondent strongly refuted this claim. In the application the appellant pleaded that the respondent was invited in the property in 1994, in his evidence said it was in 1995 but gave no details of the alleged invitation. Scrutinising closely evidence of PW1, his relationship with PW5 started in 2005 when he married her daughter. By any means PW1 could not testify on matters of 1994 or 1995 in favour of PW5 and it is not stated if he was present during the transaction or prior 2005 had any connection with the late Kulwa Mwakaliga or Sauda Mwakaliga (PW5). This has the effect of rendering PW1 evidence on invitation as alleged being hearsay. During cross examination PW1 admitted that he was told by his mother -in- law. PW1 said ‘’Ndio, uhusiano wa Sauda na mimi umeanza mwaka 2005. Habari za Sadi kuazimishwa ni Habari za mwenye eneo, mkwe wangu. Mimi ameniambia’’. Simple translation “yes, my relation with Sauda started in 2005. Information that Sadi was invited is information I was told by area owner, my -in- law. I was told”. Hearsay evidence in not admissible under section 7 62(1) of the Evidence Act [Cap 6 R: E 2022]. In Leopold Mutembei vs Principle Assistant Registrar of Titles, Ministry of Lands Housing and Urban Development & Another, Civil Appeal No. 57 of 2017 [2018] TZCA 213 (11 October 2018; TanzLII) the court after quoting evidence of a witness, held that; ‘... It is not just hearsay but also unconfirmed information that cannot be acted upon by a court of law. It would have been prudent if the appellant had produced the so-called City Council land Officer as a witness to testify on that claim.’ In this case the referred Sauda testified as PW5, in her testimony gave no details on the alleged invitation to the respondent. She said ‘’Mwakaliga alifariki mwaka 1988. Akaniacha mimi nashughulika na hayo mashamba. Baadaye akaja Sadi Mbolela kuazima mashamba hayo kulima. Nikakubali. Baada ya kumwazima aliendelea kulima.’’ Translated as Mwakaliga died in 1988. Left me dealing with farms. Later came Sadi Mbolela to borrow those farms to cultivate. I agreed. After that he continued cultivating. During cross examination PW5 said wakati nampa Sadi eneo hilo walikuwepo majirani; mzee Ayubu, mzee Ramadhani na Adija Mbolela. Simply translatedwhen I was giving to Sadi neighbours were present; elder Ayubu, mzee Ramadhani and Adija Mbolela. 8 PW5 is a person who through pleading was alleged to have given the respondent the suit property for temporary use, unfortunately there is no details as to when and who were present. Worse, present during the giving was disclosed during cross examination which puts her evidence unreliable. Akin scenario was discussed in the case of Ernest Sebastian Mbele (supra) and the court stated; ‘.... We do appreciate that she explained in her cross- examination that she "was there too". But that statement also leaves a lot to be desired. If it is true that she witnessed the gift inter vivos, why did she not mention it in the first place when she was called to establish its existence. Worst still, she did not give any detailed account, be it in her examination-in chief or cross- examination, as to the number of witnesses who were present, the names of the witnesses and/or the place where the gift was made taking into account that the 1st respondent disputed the presence of the children at home in 1988. We think it would be wrong to place any reliance on evidence of a witness who allegedly saw the donation but failed to disclose such an important material fact in her examination in chief....’ In another case of Jero Essau vs Republic, Criminal Appeal No. 495 of 2021 [2024] TZCA 1066 (7 November 2024; TanzLII) the court stated; ‘Since they failed to lead PW1 during examination in chief to establish how she knew the appellant before the incident as 9 alleged, her claim in cross examination that she used to see him in town is an afterthought.’ The same applies to the case at hand, PW5 who was main actor in the transaction did not reveal details of giving suit property to the respondent including those who were present, opted to disclose it during cross examination, which as stated in the cited cases above is nothing but an afterthought. It is in record that Ayub Musa Hassan(PW3), Ramadhan Suleman Mbida (PW6) and Adija Mohamed (PW7) testified in favour of the appellant, unfortunately record is silent if are the ones who were mentioned by PW5 or not to have witnessed the transaction. Even assuming are the ones, in their evidence PW3, PW6 and PW7 did not give any evidence on being a witness to the transaction of giving the suit property to the respondent. Their evidence was on neighbourhood and inheritance. My further analysis of the appellant’s evidence is that there was some contradiction, while PW5 said the suit property was given directly to Sadi Mbolela, PW2 said was Mohamed Mbolela and the respondent took over after his demise. Another area which raises doubts on appellant case is variance between pleading and evidence. According to pleading the respondent 10 was given the suit property in 1994 but evidence of PW3 suggests that PW5 is the one who has been using the suit property to date, PW5 said the respondent has used for five years and PW7 said for three years. In my view this is not a minor contradiction because it does not appeal in mind that neighbours from who the appellant place faith and reliance are not sure when the respondent started to use the suit property as opposed to the appellant whose evidence I have said is hearsay. It is noteworthy that the respondent through his written statement of defence and evidence tried to establish how she got the suit property and called DW2 and DW3 who are his children, their evidence was that they have seen the respondent use the suit property since 1993 and were supported by DW4 who testified to has seen the respondent use the suit property since 1993. As the respondent raised no counter claim had no duty to prove how he got the suit property. It is trite that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his and that the burden of proof is not diluted on account of the weakness of the opposite party's case. In the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 [2019] TZCA 453 (11 December 2019; TanzLII) the court stated that; ‘... the burden of proving a fact rest on the party who substantially asserts the affirmative of the issue and not upon 11 the party who denies it; for negative is usually incapable of proof. It is ancient rule founded on consideration of good sense and should not be departed from without strong reason.... Until such burden is discharged the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such a conclusion, he cannot proceed on the basis of weakness of the other party....’ The appellant complain that the respondent did not tender document as proof of his allocation, forgetting that burden of proof rested on him and was duty bound to prove how the late Kulwa Mwakaliga was allocated the suit property. Evidence in record has failed completely to prove this and is doubtful if as pleaded in 1960 there was village government. Further the claim that the respondent was invited by PW5 into the suit property was not proved by oral and documentary evidence. The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it for a negative is incapable of proof. Thus, the appellant cannot be heard to complain that the respondent did not substantiate his claim with document, for the respondent had no case to prove against the appellant. From the analysis of the evidence as discussed above, the appellant failed to establish that the respondent was the invitee to the suit property. In the circumstances, he failed to prove his case on the balance of 12 probabilities and it cannot be safely vouched that he had discharged the evidential burden as required by section 110 of the Evidence Act. Thus, the appellant's criticism on the chairman judgment is unwarranted. In the upshot, I do not find cogent reasons to vary the decision of the tribunal, the appeal is not merited and I hereby dismissed in its entirety with costs. V.M NONGWA JUDGE 12/11/2024 Dated and Delivered at Mbeya this 12th November 2024 in presence of the parties in person. V.M NONGWA JUDGE 13