Judgement Land Appeal No

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MOSHI SUB- REGISTRY AT MOSHI LAND CASE APPEAL NO. 45 OF 2023 (Originating from Application No. 12 of 2018 in the District Land and Housing Tribunal for Same at Same) ELIASIKIA EMMANUEL MGONJA........................................... APPELLANT VERSUS EDWIN A. MMBUGHU………………………………………… RESPONDENT JUDGEMENT Date of Last Order : 03.07.2024 Date of Judgement:17.07.2024 MONGELLA, J. In Land Application No. 12 of 2023 instituted in the District Land and Housing Tribunal for Moshi at Moshi (hereinafter, the Tribunal), the respondent herein sued the appellant and one Filemon Martini for trespass over his land. The said land is located at Msaa Hamlet in Mvango village, Vuje ward in Same district in Kilimanjaro region (hereinafter, the suit land). He sought, among other reliefs, for the Tribunal to declare him the lawful owner of the suit land; and to issue a permanent injunction restraining the appellant from interfering with his land. After hearing the application, the Tribunal found in favour of the respondent. It declared him the lawful owner of the suit land and Page 1 of 21 issued a permanent injunction against the appellant and the said Filemon Martin requiring them to vacate the suit land. It as well ordered them to pay costs for the suit. Aggrieved, the appellant has preferred this appeal on the following grounds: 1. That, the learned trial Chairman erred in law and facts when decided in favour of the respondent while he failed to prove on balance of probability. 2. That, the learned trial Chairman erred in law and in fact for the failure to observe and rule that the application was res judicata. 3. That, the application before the Honourable Tribunal was time barred. 4. That, the learned trial Chairman erred in law and in fact for failure to consider the appellant's evidence. 5. That, the learned Chairman erred in law and in fact for reliance on hearsay evidence. [sic] 6. The learned Chairman erred in law and in fact for failure to consider the difference between pleadings and the evidence adduced. In this appeal, the appellant sought for further reliefs from this court, being: dismissal of the Tribunal judgement and decree; a Page 2 of 21 declaration that he is the lawful owner of the suit land; an order for new evidence to be taken and new orders be made thereafter; costs of this appeal and the main suit and; any relief this court deems fit to grant. The appeal was argued by written submissions whereby the appellant was represented by Mr. Deogratias Matata Peter while the respondent was represented by Mr. Sylvester S. Kahunduka, both learned advocates. In his submission in chief, Mr. Peter prayed to abandon the 2nd and 3rd grounds of appeal. He commenced with the 4th ground, under which he averred that the Tribunal failed to evaluate the evidence before it. He contended that the Tribunal disregarded the witness statements solely because none of the witnesses were present at the time the appellant purchased the suit land. In his stance, the Tribunal ought to have disregarded the portions it considered as hearsay and proceeded to evaluate the remaining testimony. In that respect, he complained that the appellant’s evidence was not evaluated, thus never formed part of the Tribunal’s judgement. He supported his stance with the case of Leonard Mwanashoka vs. Republic (Criminal Appeal No. 226 of 2014) [2015] TZCA 294 (24 February 2015) TANZLII. Further, he challenged the Tribunal judgment arguing that it was composed contrary to the requirements under Order XX Rule 4 of the Civil Procedure Code [Cap 33 R.E 2019]. Page 3 of 21 Arguing on the 5th ground, Mr. Peter faulted the Tribunal on the ground that it relied on hearsay evidence. Explaining his point, he contended that the respondent testified on events that occurred when he was merely one year old. He argued so referring to the facts adduced by the respondent to the effect that he was given the suit land by his grandfather in 1970 while he was born in 1969. Mr. Peter further challenged the testimony of SM2 for being hearsay as SM2 was absent when the suit land was given to the respondent. He added that SM2 also failed to name the persons present during the alleged transaction. Further that, SM2’s testimony regarding the meeting held in 1986 was hearsay as she was not present in the said meeting, thus could not testify on the attendees. In the circumstances, he faulted the Tribunal’s consideration of hearsay evidence for being contrary to Section 62 of the Evidence Act [Cap 6 RE 2022]. He thus prayed for the court to expunge the hearsay evidence adduced by the respondent and his witnesses. Addressing the 6th ground, Mr. Peter contended that there was variance between pleadings and evidence adduced. Explaining his point, he said that in the application, at paragraph 6(a)(i), the respondent alleged to have been the lawful owner of the suit land and to have been in occupation of the same for a long period since 1970’s as he inherited the same from his late father, one Amon Mmbughu. That, on the other hand, in his testimony, the respondent stated that he was given the suit land by his grandfather while he was still alive, but his father was the custodian of the same until he reached majority age. Mr. Peter had the view that the respondent’s Page 4 of 21 evidence suggests that the farm was a gift inter vivos which is different from pleadings that suggest he received the same as inheritance from his father. He added that the respondent’s father demised in 2013 and if he really inherited the suit land from his father then it would have been after 2013. In the premises, he challenged the respondent’s assertion that he occupied the suit land since 1970’s. Mr. Peter argued further that the respondent ought to have provided evidence of probate process that would evidence that he inherited the suit land from his father. He held the view that all the evidence suggesting that the farm was a gift inter vivos should be disregarded as it contradicts the pleadings. Mr. Peter pointed out another discrepancy which he said regarded the size of the suit land. He said that the valuation report annexed to the application (annexure A1) showed the suit land was 1.87acres while the respondent stated that the land was approximately 4 acres. He added that SM2, SM3 and SM4 also testified that the suit land was 4 acres thereby contradicting the facts in the pleading that the land was 1.87 acres. In the circumstances, the learned counsel re-stated the legal principle that parties are bound by their pleadings, fortifying his averment with the case of Ayubu Shaban Ally vs. Zainabu Ally Sauri and Two Others (Land Appeal No. 94 of 2022) [2023] TZHC 22601 (10 November 2023) and Barclays Bank T. Ltd vs. Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020), both Page 5 of 21 from TANZLII. In his view, the Tribunal’s failure to take note of the variation led to miscarriage of justice. Addressing the 1st ground, Mr. Peter alleged that the respondent failed to prove his case to the required standard rendering the Tribunal to have erred in finding in his favour. He contended that the respondent failed to comply with the requirement under Section 110 and 111 of the Evidence Act. In his stance, the respondent ought to have proved his alleged inheritance of the suit land from his father. He further challenged that there was no evidence suggesting a probate process resulting to the respondent’s ownership of the suit land. Concluding, he prayed for the appeal to be allowed and for the appellant to be declared the lawful owner of the suit land. He as well prayed for costs of this appeal and the main suit. The respondent opposed the appeal. His counsel, Mr. Kahunduka, started replying on the 4th ground whereby he disputed the appellant’s allegation that the Tribunal Chairman failed to evaluate the evidence adduced. Making reference to the Tribunal Judgement, he averred that at pages 2 to 3, the Tribunal Chairman summarized the evidence adduced by the parties and from pages 4 to 5, he evaluated the said evidence. Mr. Kahunduka supported the Tribunal in its findings whereby it found the respondent’s evidence to have been corroborated by his witnesses while that of the appellant un-corroborated as it was purely hearsay. Page 6 of 21 Replying to the 5th ground, Mr. Kahunduka challenged the appellant’s assertion that SM2’s evidence was hearsay. In his stance, SM2’s evidence was not hearsay as she testified that the respondent was formally given the suit land in 1986 whereby, she was present. He added that SM2’s testimony was also corroborated by that of the respondent, SM3 and SM4. As to the respondent’s testimony, he contended that the respondent testified that his grandfather gave him the suit land while he was a year old. That, the respondent added that since he was underage, the land was placed under the care of his father who would give the same to him upon attaining majority age. He added that the respondent further testified that the suit land was handed over to him in 1986 when he attained majority age and the act was performed in the presence of his grandfather. Considering such testimony, he found the respondent to have proved his claim over the suit land. On the 6th ground, Mr. Kahunduka reiterated what he submitted on the 5th ground above, so I find no relevance in repeating the submission. In addition, he found the respondent’s evidence a clear indication that the suit land was handed over by his father. He contended that the respondent’s testimony shows that there was no departure from pleadings. On the other hand, he alleged that even if there was any departure, the appellant did not demonstrate how he was affected by the same. He further challenged Mr. Peter’s reference to “annexture A1” contending that the annexure mentioned was not tendered, thus not forming Page 7 of 21 part of the proceedings and does not have any bearings on the outcome of the suit. Replying to the 1st ground, Mr. Kahunduka had the stance that the respondent proved his case on balance of probabilities as required in civil cases. He maintained his stance on the 4th and 6th grounds in his submission averring that the respondent’s evidence was heavier than that of the appellant. He contended further that the respondent’s evidence was fully corroborated by SM2, SM3 and SM4 to the effect that the suit land has been used by the respondent’s parents and the respondent until 2017 where the appellant invaded the same. Mr. Kahunduka finalized his submissions by praying for the appeal to be dismissed with costs for lack of merit. After considering the rival submissions of both parties’ counsels, as well as the Tribunal record, I am of the view that, save for the abandoned grounds of appeal, the rest of the grounds challenge the evidence adduced by the appellant at the trial Tribunal. The questions concern allegations on consideration of hearsay evidence, the failure of the Tribunal to evaluate the evidence before it and the departure from pleadings. In the premises, I find it apposite for this Court to evaluate the evidence on record and make its own findings, if any. The respondent testified as SM1 and furnished three other witnesses. He testified that he was born in Msaa at Mvango village within Same district and Kilimanjaro region. He claimed to have lived his Page 8 of 21 entire life with his paternal grandparents. That, he left home to work in 1986, but still came to his grandparent’s residence during his annual leave. He alleged to have been given the suit land, which was about 4 acres, by his grandfather while he was of young age, but his grandfather handed the same to his father so that he would give him the land when he attained majority age. His father thus used the suit land and he was handed over the suit land in 1986 in the presence of his grandparents, parents, one, Steven Kijangwa, William Kijangwa (his paternal uncle) and SM3. The respondent further stated that upon being handed the suit land, he used the same whereby he cultivated bananas, pineapples, eucalyptus, “mishai” trees, maize, beans and cassava depending on seasons. That, in 1987 he was relocated to Morogoro and from there he used to send money to his parents to cultivate the suit land. That, at other times, he came to cultivate the land on his own. He further said that upon the demise of his father in 2013, his mother (SM2) continued to cultivate the suit land. That, in 2017, the appellant and one, Filimon Martine @Mkonge invaded the suit land, a fact he confirmed when he found crops cultivated on the suit land. SM2, the respondent’s mother, confirmed that the respondent and his siblings were cared for by the grandparents. She further affirmed that indeed the respondent was given the suit land by his grandfather, who is her father-in-law, in 1970. That, the suit land was handed over to her and her husband to use until the respondent attains majority age when it would be handed to him. SM2 further Page 9 of 21 testified that in 1986 a family meeting was held and the respondent was handed the suit land in the presence of Steven Kijangwa (SM3), her in-laws, her husband and one, Wiliam Kijangwa. SM2 added that after the suit land was handed over to the respondent, they continued to use the same until the demise of her husband in 2013. That, she was the one who found the appellant and one Mkonge cultivating the suit land in March 2017 and she informed one William Kigangwa and the respondent. SM3, the respondent’s relative, also confirmed that the respondent was given the suit land by his grandfather. He further stated that both, him and the respondent, lived with their grandparents. He also affirmed that the suit land was cultivated by the respondent’s parents until 1986 when the same was handed over to the respondent in his presence and that of his father one, Steven Mbughu, and one, William Kijangwa, their grandparents and the respondent’s parents. He as well stated to have been informed of the trespass in March 2017 by SM2. With regard to the size of the suit land, he stated that the same was 3 or 4 acres or more. SM4, the respondent’s paternal uncle, testified that the suit land belonged to his father and the respondent was handed the same in 1986. He claimed to have also been present at the handing over of the suit land to the respondent whereby he claimed to have been present together with his parents, the respondent’s parents and SM3. He added that SM2 had been using the suit land since the hand over. He too stated to have been informed of the trespass Page 10 of 21 by the appellant and one Firimini Martin. With respect to the size of the suit land, he stated that the same was almost 4 acres. On the other hand, the appellant testified as SU1and mounted 4 witnesses. He testified that he was sold the suit land in 1974 by one Rashid Kimolea and he cultivated the same with one Leonard Mgonja and Peter Kimboka and not Firimini. He claimed that there had been multiple suits overs the suit land whereby he was sued 4 times. Explaining the said cases, he said that the first was in Criminal Case No. 78 of 2014 whereby it was alleged that he and 2 other people had destroyed crops. That, the second, was in Land Case No. 1 of 2015 in Vuje Ward Tribunal whereby Firimini was involved and the respondent was a witness. That, the third was in Land Appeal No. 28 of 2016 in the Tribunal whereby the said Firimini was required to return the matter to the village, but he never appealed against the said decision. That, the fourth was in Criminal Case No. 61 of 2017 whereby he was accused by one Samuel Hosea Mnyepe, a friend of Firimini, of stealing maize. The appellant further alleged that the respondent also had them arrested while cultivating on the suit land and thereof Case No. 13 of 2017 was filed against them, but dismissed. He explained that the dismissal was due to the fact that the boundaries were not disclosed, something which led the respondent to value the suit land. The appellant further contended that the respondent is the grandson of one Nakaza Kaguo and Kishota Kaguo, who stood as Page 11 of 21 witnesses in the sale of the suit land. He pointed out that the suit land was 5 acres, but in his evidence the respondent testified that the land was 4 acres while the map annexed showed it was 1.87acres. Further that, in the application the value is stated to be 3 million, but in the valuation report it reads more than 6 million which was an impossible value for a village land. He added that in his evidence, the respondent stated that he got the suit land in 1985, but in the application, he stated to have gotten the suit land in 1970 while he was born in 1969. The appellant disputed the respondent’s assertion that he owned a farm in the area. SU2 testified that there was a farm neighboured by the appellant which he knew since 1974. That, the said farm was owned by one Rashid Kimolea who arrived at their home and informed them that the suit land was sold to the appellant and he moved to Ntenga. He further testified that he also farmed the appellant’s farm and the appellant cultivated maize, cassava and bananas. He mentioned other plants to be, timber trees, eucalyptus and “mishai” trees. He denied being neighbours with the respondent on the farms, but rather at his residence. SU3, a son to the said Rashid Kamolea, testified that he resided at Mvango village in Msaa hamlet, but left to Ntenga in 1955. He said that his father sold his land to the appellant vide his wife Miriam Mgonja, but he was absent during the said sale. He claimed to have been informed by his father of the said sale. As to the appellant’s use of the suit land, SU3 testified further that the Page 12 of 21 appellant used the suit land since 1974. According to him, the land was not more than 5 acres. On his part, SU4 testified to be a neighbour to the suit land. She said that the suit land was sold to the appellant by one Rashid Kimolea. Though she admitted being absent at the sale, she claimed that her father was called to witness the sale. She further testified to have seen one Miriam cultivating the farm for four or five years. SU5 testified that the suit land was purchased by the appellant’s wife. Although she had not witnessed the said sale, she alleged to have been living and cultivating the suit land with the appellant’s wife until her demise. She claimed to have proceeded cultivating the suit land thereafter until when the appellant came back home from school. As to the dispute over the suit land, she averred that the suit land was invaded after the respondent’s father died and that was when the dispute arose. Upon observing the evidence of both parties, I find that the respondent’s testimony, on being given the suit land in 1970 by his grandfather, hearsay. This is in consideration of the fact that the respondent was merely a year old at the alleged time. He thus must have learnt such details from being told by other people. However, his mother (SM2) testified on the fact that the respondent was given the suit land in 1970 whereby the same was placed under her and her husband to use until the respondent became of age. What I find more relevant is the fact that the respondent was handed the suit land in 1986. This fact was well testified by all witnesses who also Page 13 of 21 happened to physically witness the handover. This, in my view, renders SM2’s evidence on the suit land being officially handed over to the respondent in 1986, direct and not hearsay as alleged. However, while the respondent’s witnesses maintain that he received the suit land from his grandfather and it was handed to him in 1986, such fact is contrary to the facts stated in the application filed in the Tribunal by the respondent. In the said application, the respondent alleged that he has been the lawful owner of the suit land since 1970’s as he inherited the same from his father one, Amon Mbughu. This fact is found at paragraph 6(a)(1) which reads: “That the Applicant herein above is the lawful owner of the land in dispute and has been in occupation of the same for long period since 1970's as he inherited it from his late father one Amon MMbughu.” From the above extract, it is evident that the respondent’s evidence was at variance with the facts pleaded in the affidavit. It is trite law that parties and the courts are bound by the pleadings filed by the parties. See, Zebra International Enterprises Limited vs. Anthony Mrisho Ngai and Others (Civil Appeal No 536 of 2020) 2024 TZCA 142 (28 February 2024); Gloria Irira vs. Sudi Mrisho Ngwambi and Others (Civil Appeal No 27 of 2021) 2023 TZCA 17774 (23 October 2023); Ernest Sebastian Mbele vs. Sebastian Mbele and Others (Civil Appeal 66 of 2019) 2021 TZCA 168 (4 May 2021) and; Barclays Bank T. Ltd vs. Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020); all at TANZLII Page 14 of 21 The essence behind the notion that parties are bound by pleadings is to prevent parties from being taken by surprise. This was well expounded in Barclays Bank T. Ltd vs. Jacob Muro (supra) whereby the Court of Appeal stated: "As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings... For the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. See also, Gloria Irira vs. Sudi Mrisho Ngwambi and Others (supra) whereby the Court stated: “These are the pleadings by the first and second defendants that cannot easily be departed from or otherwise disowned, because in Civil cases, parties are bound by their own pleadings, not allowed to travel beyond their pleadings. They are therefore bound to take all necessary and material facts in support of the case set up by them in their pleadings. In Civil cases, parties to litigation are the ones who set the agenda, and subject to the rules of pleadings to formulate their own cases in their own ways. And it is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. With this, none of the parties is taken by surprise as to the nature of the case of defence he is going to encounter during trial. The purpose of the rule against departure from the pleading is to Page 15 of 21 ensure that parties define succinctly the issues so as to guide the testimony required on either side with a view to expedite the litigation through diminution of delay and expense.” As observed above, a party cannot raise a different case without making due amendment of the pleadings. In the matter at hand, the respondent never made any attempt to amend his pleadings in regard to how he came into possession of the suit land. Further, other than the evidence disclosing that the suit land was a gift inter vivos, it was also testified that such gift was from his grandfather one, Kijagwa Madafa which only took effect in 1986 when he was handed the suit land in his presence and that of his father from whom he pleaded to have inherited the suit land from in 1970s upon his demise. Another fact that the appellant’s counsel challenged was the 1.87 acres pleaded in the application vide Annexure A1 allegedly “a valuation report” in connection with the suit land. I have observed the application and found at paragraph 4 of the same, the respondent indeed pleaded the value of the suit land to be TZS. 6,514,000/= according to the valuation report which he annexed as annexure A1. The said annexure reflected that the valued farm was 1.87acres. Concerning the size of the suit land, the application was silent. However, it is imperative to note the legal position to the effect that the court cannot rely on a document not tendered in evidence to determine the rights of the parties even if such document was Page 16 of 21 pleaded. This was well expounded in the case of National Microfinance Bank PLC and Another vs. Lello Laurent Sawe (Consolidated Civil Appeals No 385 A 339 of 2021) [2024] TZCA 17 (6 February 2024) TANZLII, whereby the Apex Court stated: “Trite law is that, a document which is not admitted in evidence does not form part of the evidence and cannot be acted on to determine the rights of the parties even if it is in the record or annexed to the pleadings, a position well elaborated in Court's decision in the case of Shemsa Khalifa & Two Others v. Suleiman Hamed Abdallah, Civil Appeal No. 82 of 2012 (unreported), where the Court observed thus: - "We out-rightly are of the considered opinion that, it was improper and substantial error for the High Court and all other courts below in this case to have relied on a document which was neither tendered nor admitted in Court as exhibit. We hold this led to a grave miscarriage of justice." Though bound by pleadings, the respondent still would have opted to rectify the pleadings if it came to his knowledge that the suit land was in fact 4 acres rather than 1.87acres that was specified in the annexure he had attached to his pleadings. The omission to require the amendment of the pleadings or rather to explain the variation raises suspicion on his part that this Court cannot easily dismiss. In the foregoing circumstances, it appears to me that the respondent clearly raised a new case in his evidence, contrary to his pleadings. This means, he clearly failed to discharge his burden Page 17 of 21 to prove the facts he alleged. The law is trite that he who alleges must prove. See, Section 110 and 111 of the Evidence Act, Cap 6. This position was further well emphasized in Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (Civil Appeal 45 of 2017) [2019] TZCA 453 (11 December 2019) TANZLII whereby the Apex Court held: “It is trite law and indeed elementary that he who alleges has a burden of proof as per section 110 of the Evidence Act, Cap. 6 [R.E 2002]. It is equally elementary that since the dispute was in civil case, the standard of proof was on a balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other on particular fact to be proved.” The law is also trite that where the alleging party fails to discharge such burden the same does not shift to the adverse party. This was well stated in Crescent Impex (T) Limited vs. Mtibwa Sugar Estates Limited (Civil Appeal No.455 of 2020) [2023] TZCA 17501 TANZLII, that: “Likewise, it is the law that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his/her burden to prove and the said burden is not discharged or diluted on account of the weakness of the opposite party's case.” In the matter at hand, since the appellant claimed to be the rightful owner of the suit land and sought for this Court to declare him the owner of the same, his evidence ought to be examined. According to the evidence adduced by the appellant and his witnesses, he bought the suit land from one Rashid Kimolea in 1974 through his Page 18 of 21 late wife one Miriam Eliasikia. The suit land is bordered on the North by Village path; East by Nakaza Minja Kaguo; West by Filemon Martin and South by a Water Stream. In my considered view, not only did the appellant fail to tender the alleged sale agreement, his evidence on his ownership was barely corroborated by his witnesses. None of his witnesses including himself testified on witnessing the alleged sale. Their evidence was thus hearsay. Further, while questioned by the Tribunal, the appellant claimed to have cultivated the suit land from 1974 to 2017. His evidence in that regard was supported by SU3 who testified as to the appellant commencing his use in 1974. However, on the other hand, SU2 stated that the appellant cultivated crops in the suit land up to 2014. SU4 testified that it was SU5 who cultivated the suit land and that the appellant’s wife cultivated the suit land for 4 or 5 years. On the other hand, SU5 testified that he resided with the appellant’s wife from 1974 to 1975 when she demised. He also stated to have cultivated the suit land with the appellant’s wife for two seasons in 1974. He added that he cultivated the suit land in 1975 but left afterwards. SU5 further testified to have only seen the appellant cultivating the farm once and afterwards he was accused of trespassing. When questioned by the Tribunal Chairman, he alleged that since the appellant left in 1976 to 2010 the suit land had not been farmed. From the foregoing observation, I find it clear that the evidence of the appellant’s witnesses bears material contradictions that affect Page 19 of 21 his entire case. This is because it is unclear whether he really purchased the suit land in 1974 through his late wife, whether he even cultivated the same since 1974, or whether his wife or SU5 cultivated crops on the suit land on his behalf prior to 2017. In my considered view, the appellant has as well failed to discharge his burden in proving his claim over the suit land. Scrutinising the Tribunal proceedings and judgment, it came to my attention that the Tribunal disregarded a material fact in resolving this dispute, which is the location of the suit land. Both parties presented differing boundaries of the suit land. It is as if they were talking of two distinct pieces of land. On one hand, the respondent claimed that the suit land was bordered on the North by Amon Mbughu; South by Moses Nikombolwe; West by foot path and East by Firimini S. Mmbughu. On other hand, the appellant claimed that the suit land was bordered on the North by Village path; East by Nakaza Minja Kaguo; West by Filemon Martin and South by a Water Stream. These are two diverse properties as the boundaries themselves are different. In the premises, it is my considered view that a visit to the locus in quo should have been made an option to clear out the doubts on the location of the suit land. This, in fact would have assisted in ascertaining the rightful owner of the suit property by ascertaining the boundaries and long usage of the suit land between the parties by considering the evidence from the alleged neighbours. This is in further consideration of the circumstances in this matter whereby Page 20 of 21 both parties have failed to accurately substantiate their claims as to the ownership of the alleged suit land. In the foregoing observation, I hereby quash the Tribunal Judgment. For interest of justice, I order the case file to be remitted back to the Tribunal for collection of further evidence at the locus in quo pertaining to the location and size of the suit land and for purposes of ascertaining long usage of the suit land between the parties for proper determination of the rightful owner. Dated and delivered at Moshi on this 17th day of July 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 21 of 21