eliya

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY ATTABORA LAND APPEAL NO. 27720 OF 2023 (Originating from the decision of the District Land and Housing Tribunal: for Tabora in Land Application No. 07 of2021) ELIYA PETER MGALIHYA (As the Administrator of the Estates of the late Neema Kalunde Petro) ................................. . APPELLANT VERSUS OMARY SELEMANI MAKANGALA................ ..... 1st RESPONDENT OMARY KASELE KAGULUKILA... ......... ............. .....2nd RESPONDENT JUDGMENT Pate.ofLast Order: 12/07/2024 Date of Delivery: 15/08/2024 MANGO, J. The Appellant instituted a land dispute in the District Land and Housing Tribunal for Tabora against the Respondents here in. He claimed that the Respondents trespassed into the suit land in the year 2018. The trial tribunal declared the second Respondent as the lawful owner of the land in dispute. A brief background giving rise to the current appeal provides that, the Appellant being the administrator of the estate of the late Neema Kalunde Petro sued the Respondents for unjustifiable conversion of the deceased's i land measuring 18 acres into their possession. It was alleged that the 2nd Respondent claims ownership over the suit land and when he shifted to another village, he left the suit land under care of the 1st Respondent. The Appellant insisted that the suit land belongs to the late Neema Kalunde Petro and that he is the heir to the said deceased's estate as a brother. After a full trial, the trial tribunal decided in favour of the second Respondent, Omary Kasele Kagulukila. Dissatisfied by the decision of the District Land and Housing Tribunal, the Appellant preferred the appeal at hand. His memorandum of appeal contains five grounds of appeal which state that: - 1. The trial tribunal grossly erred in law and fact (s) to held the in favor of the 2nd Respondent, by declaring him to be lawful owner of the disputed land (measured 18 acres) while it admitted that the Respondent only managed to prove ownership of 9 acres only since 1967 as corroborated by testimony of DW1 and DW4 respectively, leaving behind 9 acres un determined to either of the disputants, hence arrived at wrong conclusion. 2. The trial tribunal grossly erred in law and fact (s) to held in favor of the Respondent basing on the contractions of the pleading and testimony of PW1 during trial tribunal proceedings without regarding that such contradictions was also detected on the party of DW1 during cross examination, such inconsistence would have discredited both PW1 and DW1, and not only PW1 to that effect. 3. The trial tribunal grossly erred in law and fact (s) to held in favor of the Respondent without giving due regards to the evidence of Appellant whose sister late Mwl Neema Was in occupation of the disputed land since 2 1967 and the said land was actually in their occupation up to her demise something that was never challenged during the trial tribunal proceedings; 4. The trial tribunal grossly erred in law and fact (s) to held in favor of respondent without giving due regards to the testimony of the Appellant's witnesses to wit PW2 and PW3, (one Aloyce Kapaya and Miraji Mrisho Mbasha respectively) whose testimonies was weightier than that of DW2, hence arrived at the wrong conclusion. 5. The trial tribunal grossly erred in law and fact (s) to held in favor of the Respondent with total isolation of testimony of PW4 who was a local leader presided over as VEO of Ndevelwa Ward who proved the ownership of the late by late Mwl Neema and discredited the evidence of DW2, hence arrived at the wrong findings. During hearing of this appeal the Appellant was represented by Mr. Hassan Kilingo whereas the Respondent was represented by Ms. Flavia Francis, learned advocates. In support of the first ground of appeal the counsel for the Appellant faulted the decision of the District Land and Housing Tribunal declaring the Respondent to be the lawful owner of the land measuring 9 acres leaving aside 9 acres undecreed. He stated that, the land in dispute measures 18 acres as it appears in the application filed before the trial tribunal. He argued that, the decision of the trial tribunal is not clear as to whether the Respondent was declared to be the lawful owner of the entire land or only 9 acres which he allegedly proved to be his. The learned counsel is of the view that, leaving ownership of the remaining 9 acres undetermined is an error 3 and he prayed the Court to find that the Appellant has proved ownership of 9 acres that were not determined. On the second ground of appeal, he submitted that, the Appellant was unfairly penalized for contradictions regarding how the late Neema acquired ownership over the disputed land. The learned advocate conceded that, the Appellants testimony before the tribunal, as to how the late Neema acquired ownership over the disputed land contradicts the contents of his application. While in the application he stated that Neema cleared the land, in his testimony before the tribunal he said Neema was given the land in dispute by his relatives. He pointed out that, same contradiction exists in the Respondents case, who also stated to have been given land by Mohamed Taulo while in his pleadings he stated that he cleared the land in the year 1967. It was his contention that the decision of the District Land and Housing Tribunal was biased. On the third ground of appeal Mr. Kilingo challenges the decision of District Land and Housing Tribunal for the alleged failure to consider the Appellant's testimony regarding undisputed occupation of the land by the late Mwl. Neema since 1967. He further stated that, record establishes that, Mwl. Neema occupied the land in 1967 and her family continued to occupy the land after her death. In respect to the fourth ground of appeal, Mr. Kilingo pointed out that, the Appellant's testimony was stronger than the Respondent's testimony thus, deserved to win as it was held in the case Hemedi Saidi V Mohamedi Mbilu 1984 TLR 113 (HC). He contended that the testimony of PW2 and PW3 regarding Mwl. Neema's ownership over the land, especially Mzee 4 Kapaya is stronger than the Respondent's testimony due to the time he spent in the area compared to the Respondent and his witnesses. He added that, PW3's testimony is also stronger due to time he spent in the areas and his knowledge over the historical background of the area and its residences. Lastly Mr. Kilingo challenged the decision of the trial tribunal for failure to consider the testimony of PW4, who was the Village Executive Officer. According to him, PW4's testimony establishes that the land in dispute belongs to Mwl. Neema. He reproduced part of PW4's evidence as to what transpired during clearing a village road. He submitted that, PW4 stated clearly that, in the course of clearing the village road, it was agreed that, areas which were owned by villagers, should be cleared by the individual villagers. When they reached at the disputed land, they did no clean the road space because it was owned by Mwl. Neema. PW4 stated the size of the land to be between 17-20 acres. He referred this court to the decision of the Court of Appeal in the case of Goodluck Kyando Vs Republic 2006 TLR 363 to the effect that, every witness is entitled to credence and to be believed. He prayed the appeal be allowed with costs. In her reply submission, advocate Francis opposed the appeal and submitted in respect of all grounds of appeal as follows. On the first ground of appeal she argued that, evidence on record does not establish the size of the land in dispute to be 18 acres. According to her, the size of land that was mentioned by all witnesses was merely based on estimations. She pointed out that, PW1 who was the Applicant before the trial tribunal stated that, the land in dispute measures 18 acres but he failed 5. to establish the size of the land to be 18 acres. In brief, she argued that, there is no concrete evidence as to the size of the disputed land. In that regard, she is of the view that, the trial tribunal was correct to declare the second Respondent as the lawful owner of the disputed land without mentioning its size. On the second ground of appeal, she submitted that, the trial tribunal decided the matter based on available evidence and not the alleged contradictions. She argued that, the Appellants evidence regarding Mwl. Neema's ownership over the disputed land was not strong. According to her, the Appellant and his witnesses failed even to describe the land in dispute on the required standards. In this, she referred the Court on the contradictions in the manner the PWl's and PW2's described the land in dispute. PW1 stated that the land was cleared by the late Neema in 1967 and that, the deceased used to cultivate cassava, groundnuts, and maize in the area. His evidence contradicts that of PW2 who stated that, the deceased used to cultivate rice in the area. He argued that, the land in which one can cultivate rice, in most cases cannot support growth of maize due to different characteristics of the two crops. It was her opinion that the two witnesses were testifying in respect of different pieces of land. She went on to argue that, PW3 testified to the effect that, he cleared the land belonging to Neema but he did not describe the land he cleared. PW4 stated arrived at the land when Neema was already dead but he did not say who told him that the land in dispute belongs to Neema nor did he say how Neema acquired the land. She concluded on this ground that, with 6 those contradictions in the Appellant's case, the trial tribunal correctly determined the matter in favour of the second Respondent. On the third ground of appeal the attorney submitted that, the Tribunal considered evidence as to the time the Appellant stayed in the land in dispute. However, the only dispute is location of the land. She argued that, evidence in record establishes that, the Appellant is not conversant with the exact location of the land that forms part of the estate of Mwl. Neema. She referred the Court to the testimony of DW3 who testified to the effect that, he resolved a number of disputes which resulted from the Appellant's trespass to other people's land alleging the same belongs to his sister. She argued that, the disputes that were resolved by DW3 establishes that the appellant does not know the location of the late Neema's land that's why he kept on trespassing into the lands belonging to other people. On the fourth ground of appeal, the learned counsel challenged the testimony of PW2 and PW3 for their failure to establish Mwl. Neema's ownership over the disputed land. She submitted that, PW2 does not know well the disputed land. In this, she pointed out the contradictions between PWl's and PW2's testimony as to the crops that have been grown in the disputed land. While PW1 stated that the late Neema used to grow Cassava in her land, PW2 stated bravely that, cassava has never been grown in the land. As to the late Neema's ownership over the land, PW2 considers the land to belong to Neema because he saw her growing crops while PW3 considers the land to be Neema's merely because he was instructed by the late Neema to clear the land. The learned counsel observed that, such 7 evidence cannot be considered to be stronger than DWl's testimony which was so detailed. On the fifth ground of appeal, the Respondents' counsel submitted briefly that, PW4's testimony was considered and the findings of the trial tribunal considered testimony of both sides equally. She prayed the appeal be dismissed with costs. I have examined the arguments for and against this appeal and considered Court record. The grounds of appeal are centered on the alleged non consideration and failure to evaluate properly Appellant's evidence. It should be noted that, it is a cardinal principle of evidence that requires a person who alleges existence of any right to establish its existence before the Court determines a matter in his favour. See section 110 and 112 of the Evidence Act, [Cap. 6 R.E 2022]. In this respect, the Appellant, who was the Applicant before the trial tribunal, was duty bound to prove his ownership over the disputed land on the required standard that is balance of probabilities. I will start with assessing whether the Appellant discharged his duty which is the gist of almost all grounds of appeal. Efforts by the Appellant to discharge his duty of proving the late Neema's ownership over the suit land, were encountered by contradictions as to how the land was acquired and description of the land. While contradictions regarding description of the land arose in testimonies of Appellant's witnesses, contradictions as to the manner the land was acquired is between the pleadings and the Appellant testimony before the tribunal. It is well established that parties are bound by their pleadings. This stance has 8 been held in a number of cases including the case of Sure Freight Tanzania Ltd vs XCMG Tanzania Ltd (Civil Appeal No. 101 of 2020) [2023] TZCA 17286 (31 May 2023). In the cited case, the Court of Appeal observed that: "parties to the case are bound by their own pleadings and they cannot be allowed to raise a different matter without due amendments being properly made. Furthermore, the court itself is as bound by the pleadings of the parties as they are themselves. The rule aims at barring parties from departing from their pleadings during the trial thereby taking the opponent by surprise in line with our previous decisions.." Despite the contradictions as to the manner the land was acquired, there are contradictions pertaining to the description of the land especially regarding its location. With all those contradictions, the Appellant cannot be considered to have proved his ownership over the disputed land. Such findings would have resulted to a dismissal of the application before the tribunal and the appeal at hand. However, I noted that, the trial tribunal instead of dismissing the Appellants application, it proceeded to declare the second Respondent to be the owner of the disputed land. My perusal of Court record revealed that the second Respondent has not raised any counter claim so as to enable the Court to declare him to be the owner of the disputed land. Moreover, the second Respondents case is also tainted with contradictions between pleadings and his testimony before the tribunal. In his written statement of defence under paragraph 4 he 9 pleaded that he cleared a virgin land and occupied the land in dispute. During trial/ he stated he was given the land which measures 9 acres by Mohamed Taulo Kitupa. It should be noted that failure by the Appellant to prove his case does not automatically entitle the Respondent with ownership over the land in dispute. In addition/ in absence of proof as to the size of the disputed land/ it is not safe to declare the second Respondent as the owner of the disputed land generally. I hold so bn the reason that, the second Respondent testified in respect of 9 acres only while the Appellant claimed ownership of 18 acres. By declaring the second Respondent to be the lawful owner of the land in dispute, the trial tribunal vests in the second Respondent ownership of 18 acres which he neither claimed nor proved to be his property. It is my considered view that, this case is among the cases that compels the court to visit locus in quo so as to clear doubts regarding the location and perhaps the size of the land. I am aware that visiting locus in quo is not a mandatory requirement for a trial tribunal to reach a fair and just findings, but it depends on circumstances of every case. In the instant case, where parties a disputing on a land with different size and perhaps located at different locations, I find it was necessary for the trial tribunal to visit the land in dispute in order to verify testimonies given by the parties in respect of the disputed land. In the case of Avit Thadeus Massawe vs Isdory Assega (Civil Appeal No. 6 of 2017) [2018] TZCA 357 (14 December 2018) the court of Appeal held that: io "Since the witnesses differed on where exactly the suit property is located, we are satisfied that the location of the suit property could not, with certainty, be determined by the High Court by relying only on the evidence that was before it. A fair resolve of the dispute needed the physical location of the suit property be clearly ascertained. In such exceptional circumstances courts have, either on their own motion or upon a request by either party, taken move to visit the locus in quo so as to dear the doubts arising from conflicting evidence in respect of on which plot the suit property is located. "(Emphasize added) As I stated, the circumstances in this matter require the tribunal to visit the locus in quo. For that reason, I hereby employ revisionary powers vested in this court to nullify the proceedings and the set aside the judgement and decree thereof, consequently I order for a retrial of this matter preferably before a different chairperson. Each party should bear his own costs. Dated at Tabora this 15th day of August 2024 Z. D. MANGO JUDGE 11