EMMANUEL SIZYA TOFIKI V SELEMAN ISSA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA LAND APPEAL NO. 42 OF 2023 {Arising from the Decision of the District Land and Housing Tribunal for Tabora in LandApplication No. 24 of2019) EMMANUEL SIZYA TOFIKI............. ..................... APPELLANT VERSUS SELEMANI ISSA....... ..................................... RESPONDENT JUDGMENT Date of Last Order 20/08/2024 Date ofDelivery: 27/08/2024 KADILU, J, In 2019, the appellant filed a land case in the District Land and Housing Tribunal (DLHT) for Tabora claiming to be the lawful owner of five (5) acres of land located at Mguluko Hamlet, Itaga Village in Misha Ward within Tabora Municipality. He alleged that in 2017, the respondent trespassed on his land and started to cultivate some crops thereon claiming that the land belonged to his family. He reported the matter to Hamlet and Village leadership whereby the dispute was resolved by conciliation but after some time, the respondent revived it. Therefore, the appellant prayed for the DLHT to declare him the rightful owner of the disputed land, a declaration that the respondent was a trespasser on the appellant's land, payment of general damages to the tune of TZS. 5,000,000/=, and costs of the case. Having heard both sides, the Hon. Chairman of the DLHT decided the case in favour of the respondent. i Aggrieved by the tribunal's decision, the appellant filed in this court the instant appeal praying for the court to quash and set aside the tribunal's judgment and decree, and declare him the rightful owner of the suit land allegedly because: The trial Chairman of the tribunal grossly erred in law and facts by failing to consider the weight ofevidence tendered by the appellant that he was given the land in dispute by his fate father after marriage. 2. The trial Chairman of the tribunal grossly erred in law and facts by declaring the whole land in dispute as the property of the respondent while the dispute is all about the boundaries. 3, The trial Chairman of the tribunal grossly erred in law and facts by holding that there was an agreement between the appellant and the respondent while the contractual document was neither previously tendered before the tribunal nor given to the appellant. 4. The trial Chairman of the tribunal grossly erred in law and facts by making a decision based on weak evidence tendered by the respondent during the trial. Based on the strength of these grounds, the appellant urged the court to allow the appeal with costs. The appeal was disposed of by way of written submissions following a prayer by the respondent. Mr. Frank Kavishe, the learned Counsel, represented the appellant. The respondent appeared in person, without legal representation. I should point out here that the respondent filed two different versions of the submission. The one consisting of four pages has not been considered because it was not uploaded online on the scheduled date although it is in the physical case file. Likewise, the appellant's rejoinder is ignored because it emanated from the respondent's wrongly filed 2 submission. Thus, the two documents are hereby expunged from the court's records. Submitting on the 1st ground of appeal, Mr. Kavishe stated that the appellant was given the disputed land by his late father, being a habit of the father whenever any of his children got married. Furthermore, he argued that the appellant had been in a long-term use of the land contrary to the respondent. The learned Advocate faulted the trial tribunal for relying on exhibit Dl as evidence of the respondent's ownership of the land in dispute. Concerning the 2nd ground, the learned Counsel submitted that the trial tribunal decided a case wrongly by assuming the dispute was on the whole land not boundaries. He expounded that the parties presented their case indicating that the dispute concerned the boundaries only. He referred to the case of Nkungu v, Mohamed [1984] TLR 46 in which the court held that judgment must be based on the evidence adduced and not otherwise. Regarding the 3rd ground of appeal, Mr. Kavishe submitted that the trial Chairman wrongly treated exhibit Dl as a contractual document between the appellant and the respondent. He argued that exhibit Dl is not the parties' agreement as held by the trial tribunal. To him, it was a decision of the Village Land Council after the parties referred the dispute to the Council. Mr. Frank contended that the Council had no jurisdiction to resolve the dispute because it had no power to summon witnesses, take evidence, and issue a judgment. He concluded that there was no agreement between the parties regarding the boundaries because the Village Land Council is not a land disputes court in the eyes of the law. 3 On the 4th ground of appeal in which the appellant contends that the learned Chairman grossly erred in law and facts by reaching a decision based on weak evidence of the respondent, Mr. Kavishe reiterated his submission on the 3rd ground of appeal. He continued to challenge the heavy reliance on exhibit Dl by the trial tribunal. He supported his contention with the case of the Attorney Genera! v. Amos Shavu [2001] TLR 134, in which the Court held that: "The decision of the court can be founded only upon evidence adduced in court but not on information privately obtained in the absence of the parties. It follows, therefore, that the award by the learnedjudge based, as it was, on information from unknown sources, was a complete nullity and deserve no further attention." Based on the submissions herein above, the learned Advocate for the appellant prayed for the appeal to be allowed and for the respondent to be condemned to pay the costs of the case. The respondent submitted that the appellant failed to prove in the trial tribunal that he was given the suit land by his late father. He argued that exhibit Dl which was discredited by the appellant is a genuine and valid document to prove that the respondent is the lawful owner of the land in dispute. With regard to the 2nd ground of appeal, the respondent submitted that the dispute before the tribunal was about land ownership, not boundaries as contended by the appellant. He opined that exhibit Dl is valid as it shows that the dispute was once resolved through mediation by the Village Land Council which set the demarcations but the appellant did not respect the decision. Like the appellant, on the 4th ground of appeal, the 4 respondent repeated what he had stated on the previous grounds. He urged the court to dismiss the appeal with costs. I have gone through the tribunal's records, the grounds of appeal, and submissions by the parties. Now, the task before me is to determine whether or not the appeal has merit. In doing so, I will discuss the 1st and 4th grounds of appeal jointly as they both challenge the weight of evidence presented before the trial tribunal. The appellant asserts that the learned Chairman of the tri burial erred in deciding the dispute in favour of the respondent while the appellant proved that he was given the disputed land by his late father. In connection to that, the appellant argued that the tribunal was not justified in relying on exhibit DI as proof of the respondent's ownership of the disputed land. The appellant testified that he was given the land in dispute by his late father in 1994 in the presence of Omary Chiza Tofiki who is his brother. Omary Chiza testified as PW4 and informed the tribunal that the disputed land belongs to the respondent. Exhibit DI is the records of the Itaga Village Land Council meeting which resolved this dispute between the parties in 2019. The appellant informed the Council that he was given the land in dispute by one Mariam free of charge but no person witnessed it. In this situation, I am unable to agree with the appellant's claim that he proved his ownership over the land in dispute. For one to prove ownership of unregistered land in Tanzania, he needs to have a piece of tangible evidence such as a sale agreement, deed of gift, the allocation by the Village authority, or proof of inheritance from the deceased parent(s). The appellant's allegation that he was given the 5 disputed land by his late father was not proved in any way. He could prove the claim by presenting a deed of gift or probate documents indicating that he was given land as part of his inheritance from his deceased father. As he failed to do so, this court finds that the appellant did not prove his ownership of the land in dispute. More so because even oral testimonies presented by his own witnesses did hot support his claim. Thus, the 1st and 4th grounds of appeal are devoid of merit and are hereby dismissed. The appellant complains on the 2nd ground of appeal that the trial Chairman of the tribunal grossly erred in law and facts by declaring the whole land in dispute as the property of the respondent while the dispute is all about the boundaries. In resolving this issue, I will let the records speak. In the tribunal, the appellant indicated in his application that he was the owner of 5 acres of land situated at Mguluko Hamlet, Itaga Village in Misha Ward within Tabora Municipality, and that, the respondent trespassed on the said land and cultivated some crops thereon. He repeated the same description in his testimony during the trial. In the end, the learned Chairman declared the respondent the lawful owner of the disputed land. The Chairman did not mention: anywhere in the judgment that the respondent is entitled to 5 acres. He only ruled out that the respondent is the lawful owner of "the disputed land." The law is settled that parties are bound by their pleadings and a party can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a hew case. See, Martin Fredrick Rajab k Ilemela Municipal Council & Another, Civil Appeal No. 197 of 2019, the Court of Appeal at Mwanza. 6 The evidence produced by any of the parties that do not support the pleaded facts or are at variance with the pleaded facts must be ignored. I have observed that at one point, the appellant stated in evidence that the respondent trespassed on his one acre. However, that cannot change what the appellant had pleaded in his pleadings that the land in dispute is 5 acres. The appellant was not allowed to set a new case during testimony. For this reason, his evidence concerning the description of the suit land which varies with the facts pleaded in the application had no legal value and deserved to be ignored. As such, I dismiss the 2nd ground of appeal for want of merit. The other complaint by the appellant on the 3rd ground is that the trial Chairman of the tribunal grossly erred in law and facts by holding that there was an agreement between the appellant and the respondent while the contractual document was neither previously tendered before the tribunal nor was it given to the appellant. This ground of appeal shall not take much of the court's time as the record is very clear about it. Indeed, the learned Chairman misdirected himself in considering that the minutes of the Village Land Council (exhibit DI) was a contractual document between the parties herein. Notwithstanding, I cannot entirely agree with Mr. Kavishe’s contention that the Village Land Council has no mandate to resolve land disputes. Section 60 (1) of the Village Land Act [Cap. 114 R.E. 2019] mandates every village to establish a village land council to mediate between and assist parties to arrive at a mutually acceptable solution on any matter concerning village land. Therefore, the Village Land Council has the power to mediate land disputes within its jurisdiction. Nevertheless, the learned Chairman Of 7 the tribunal wrongly considered exhibit DI as evidence that the disputed land belongs to the respondent because the appellant did not accept the conclusions of the mediation by the Village Council which is why he referred the dispute to a court having jurisdiction over it as per Section 62 (1) of the Village Land Act. I have already shown that proof of ownership of unregistered land can be by way of a sale agreement, deed of gift, customary right of occupancy, inheritance from the deceased parent(s), or long occupation after abandonment by the owner under the doctrine of adverse possession. Indeed, the circumstances of this case did not need the invocation of the doctrine of the sanctity of contract as the learned Chairman did because the parties were not in a contractual relationship. Therefore, I find merit in the 2nd ground of appeal and allow it accordingly. The appellant contends that the respondents did not produce any tangible evidence to prove that he is the lawful owner of the land in dispute. In my view, it is also a misconception by the appellant to argue that the respondent relied on exhibit DI in proving land ownership. It has to be noted that the respondent had no burden of proving ownership of the suit land, but the appellant had. Section 110 of the Evidence Act [Cap. 6 R.E.2022] is very clear that he who alleges has a burden to prove his allegations. In Tabora Municipal Council & 2 Others K Kasea Kisanji & 39 Others, Civil Appeal No. 112 of 2023, the Court of Appeal held that it was not upon the 2nd appellant to prove a negative for, a negative is incapable of proof. The appellant was, therefore, not justified to shift the burden of proving ownership to the respondent. 8 Based on the foregoing analysis, this court holds that the entire appeal lacks merits. As a result, I do not find any reason to disturb the findings of the trial tribunal. I, thus, dismiss the appeal with costs. The right of appeal for any aggrieved party is fully explained. Order accordingly. KADiLU; MJ. JUDGE 27/08/2024 The Judgment delivered in chamber on the 27th day of August, 2024 in the presence of Mr. Frank Kavishe, Advocate for the appellant, and Mr. Selemani Issa, the respondent. ILU, M.J. JUDGE 27/08/2024 9