CIIVIL APPEAL NO 4 OF 2021 FATUMA S

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARIJA, 3.A.. KENTE. 3.A. And MURUKE, JJ U CIVIL APPEAL NO. 4 OF 2021 FATUMA S. BASSEBE................... ............ ............................ APPELLANT VERSUS JASON MUTAGULWA RWIZA ............. ................. ......... RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania Land Division at Dar es Salaam) (Moetta, 3.^ dated the 16th day of July, 2015 in Land Case No. 149 of 2008 JUDGMENT OF THE COURT 21st August, 2023 & 22nd May, 2024 MWARIJA. J.A.: The appellant, Fatuma Salum Bassebe was the defendant in the High Court of Tanzania, Land Division at Dar es Salaam. She was sued by the respondent, Jason Mutagulwa Rwiza in Land Case No. 149 of 2008. In that case, the respondent claimed that he was the lawful owner of a piece of land on Plot No. 2059 Block 'L' situated at Mbezi within the Dar es Salaam City (the suit land or the plot), having purchased it from one Heaven Mtui. He claimed further that, some time later, after having i acquired, the plot and while in the process of obtaining a certificate of a right of occupancy, he learnt that the appellant had obtained in respect of the plot, a letter of offer of a right of occupancy issued by the Commissioner for Lands. On the basis of his claims, the respondent sought the following reliefs: (a) A declaration that he was the lawful owner of the suit land. (b) A perpetual injunction restraining the appellant from doing any act interfering with the respondent's ownership. (c) Payment of general damages. (d) Payment of interest and costs of the suit. (e) Any other reliefs as the court would deem fit to grant. The appellant denied the respondent's claim that he was the lawful owner of the suit land. She contended that, the same could not have been sold to the respondent by the said Heaven Mtui because that person had never been allocated it by any competent land allocation authority. Apart from disputing the claim thereby praying for dismissal of the suit, the appellant raised a counterclaim. She claimed to be the lawful owner thereof contending that, the suit land, which according to her, was previously Plot No. 786 Block was allocated to her by the Kinondoni Municipal Council on 11/1/1989. Like the respondent, the appellant prayed for an order declaring her the lawful owner thereof, permanent injunction restraining the respondent from interfering with her right of ownership, payment of general damages of TZS 20,000,000.00, interest, costs of the suit and any other reliefs which the court would deem fit to grant. In his evidence, the respondent who testified as PW1, stated that, he bought the suit land from one Heaven Mtui on 10/5/2004 for TZS 2,000,000.00 vide a sale agreement which was admitted in evidence as exhibit 'A'. Thereafter, he applied to be granted a right of occupancy by the Kinondoni Municipal Council but the authority informed him that, the appellant had also claimed ownership of the plot. He testified further that, upon inquiry, which was conducted by the Kilongawima local authority on the directions of the Kinondoni Municipal Council (the KMC) whereby the appellant was represented by her son, one Abdallah Salehe (DW2), it was found that the suit land belonged to the respondent, having bought it from the said Heaven Mtui. It was his evidence further that, DW2 had produced a letter of offer in respect of Plot No. 786 which he admitted that, it was invalid because it was cancelled after the plot was re-designated as Plot No. 2059. The Kilongawima local authority sent the inquiry report to the KMC for its decision. White making a follow-up however, he was informed that the appellant had a letter of offer in respect of the suit land. The KMC then wrote a letter (exhibit 'D') to the Commissioner for Lands advising him to revoke that letter of offer. With regard to the counterclaim, PW1 denied the appellant's claim contending that, since her application for grant of a right of occupancy was made vide her letter dated 1/10/2007, she was obviously not in occupation of the suit land prior to that date. He insisted that, the appellant did not have any evidence showing that she was given the suit land by the said Hamidu Mgaya. The respondent's evidence was supported by Heaven Originas Mtui (PW4). His testimony was that, he was previously the owner of the plot which he had purchased from one Richard Rugemalira at the price of TZS 95,000.00. Later on, he sold it to the respondent for TZS 2,000,000.00. After he had sold the plot to the respondent, PW4 learnt that a dispute had arisen over its ownership between the appellant and 4 the respondent. However, he said, after the office of the Mtaa Chairman, Kilongawima had conducted investigation in which he was involved, it was found that the appellant did not have any right over the suit land. The Mtaa Chairman, Francis Josephat Woiso testified as PW5. His evidence was that, on the instruction of the KMC, he conducted investigation on the dispute over the suit land between the appellant and the respondent. In the investigation, he involved the respondent and the appellant who was represented by her son. After investigation, PW5 found that, although the appellant had a copy of a letter of offer for Plot No. 786, the plot was previously owned by one Kilambata who sold it to Richard Rugemalira. Later on, the said person sold it to PW4 who in turn, sold it to the respondent. He stressed that, the suit land had never been owned by the appellant. Pwl's evidence was also supported by Athanas Raphael Mkuchu (PW2) and Agaton Josephat Mwingira (PW3). PW2 who was PWl's neighbour at Kilongawima testified that, he resided at the area since 1980 and was aware that, previously, the suit land belonged to one Richard Rugemalira who sold it to PW4 from whom the respondent bought it. He testified further that, throughout his stay at the area, he had never seen the appellant there. It was his evidence also that, he did not know Hamidu Mgaya. On his part, PW3 who was at the material time the Mtaa Executive Officer, gave evidence to the effect that, he owned a plot of land at the area. He stated that, in 2003, the area was surveyed by the Ministry of Lands but not in accordance with the Master Plan. So, it was later resurveyed and his piece of land was designated as Plot No. 2695. According to his evidence, he did neither recognize Hamidu Mgaya nor the appellant to be among the owners of plots of land in the area. To his knowledge, the suit land was purchased by the respondent from PW4 whose name was in the official register of owners of plots of land at the area. He added that, the sale was made vide a sale agreement (exhibit 'A'), a copy of which was availed to the Mtaa office. The respondent relied also on the evidence of John Mughwai Langas (PW6) who was a Land Officer, KMC. His evidence was to the following effect: He recalled that the respondent applied to be allocated a piece of land, Plot No. 786. His application was accompanied by inter alia, an introduction letter issued by the area's Local Authority and an affidavit describing on how he came into the possession of the plot. In the course of dealing with the application, he was informed that, the plot had ownership dispute. For that reason, he directed the Mtaa authority to carry out investigation on the dispute which was between the appellant and the respondent. The Mtaa Authority did so and sent a report in which a finding was made, that the plot belonged to the respondent. According that report, the appellant had failed to establish that she acquired the plot from Hamidu Mgaya. Consequently, the KCM issued the respondent with a letter of offer (exhibit TO in respect of the plot. When he was cross examined, PW6 stated that, Hamidu Mgaya was the head of the KMC's Survey Department. He said further that, the appellant did not have any document showing that Hamidu Mgaya surrendered the plot to her. In her defence evidence, the appellant, who testified as DW1, averred that, she was given the plot by Hamidu Mgaya whom she described as her cousin. According to her evidence, she was given the plot in 1988 and went on to pay land rent to the KMC. Later on, she said, she was granted a letter of offer which she tendered as exhibit D3. She also tendered payment receipts as exhibits D2 collectively. DW1 went on to state that, after having been granted a letter of offer, she successfully applied for a building permit but when she started to construct a fence, she was served with a stop order on account that, the respondent had claimed ownership of the plot. When she was cross- examined, she admitted that she did not have blood relationship with Hamidu Mgaya but that she treated him as her cousin because they had become were well known to each other. Testifying in support of the appellant's evidence, her son, Abdallah Salehe (DW2) narrated on how he came to know that the plot, which was previously No. 786, was owned by her mother, the appellant. It was his evidence that, on the instruction of the appellant, he started construction of the wall fence but before he completed the construction, he was served with a stop order. He contended that, there was a hut on the plot and that the same was at a linter stage of construction. On the description of the plot, he relied on the information of the KCM's Town Planner that the number was changed from 786 to 2059, the latter having a bigger area. In cross examination, he admitted that the appellant had not applied to be allocated the plot. He said also that, the respondent entered into the plot between 2004 and 2005 and roofed the unfinished hut. The other witnesses for the appellant were Masinga Herman Edward (DW3) and Honest Kulaya (DW4) who were at the material time the KMC and the Ministry of Lands respectively, DW3 testified that, the suit land which was previously Plot No. 786, was allocated to Hamidu Mgaya in 1988. He tendered a letter of offer as exhibit D4. He went on to state that, the said person surrendered the plot and requested that the same be allocated to the appellant. On that request, he said, the appellant was issued with a letter of offer of the plot which, after resurvey, became plot No. 2059. It was DW3's further evidence that, on 11/2/2006, the respondent applied to be allocated the suit land but his application was unsuccessful because the same had already been allocated to the appellant. When cross-examined, DW3 admitted that Hamidu Mgaya had never applied to be allocated the plot. As to the evidence that Hamidu Mgaya was the employee of the KMC, the witness contended that, he was not aware that such was the case. On his part, DW4, testified that, the appellant was issued with a letter of offer in respect of plot No. 786 in 1989. In 2007 after the area 9 had been re-surveyed and the plot re-designated as plot No. 2059, she was granted a letter of offer thereof. It was his evidence also that, the plot was previously owned by Hamidu Mgaya vide a letter of offer issued to him in 1988. According to DW4, there was no evidence from the land office records showing that PW4 had ever been allocated the plot. He contended further that, he did not know that Hamidu Mgaya was an employee of the KMC. In his judgment, the learned trial Judge (Mgetta, J.) found that, from the evidence, the respondent was the lawful owner of the suit land. He found that, the evidence of the respondent as supported by PW3 which traced the ownership of the plot from one Kilambata who owned it under customary law before the survey and later to Heaven Mtui who sold it to the respondent after it had passed hands between other two buyers, was a credible evidence. The trial court also believed the evidence of PW5 that, upon investigation on the ownership dispute between the appellant and the respondent, it was established that the respondent was the lawful owner thereof. The learned trial Judge relied also on the fact that, the appellant did not call as a witness, Hamidu Mgaya who, according to her, gave her 10 the plot. He was also of the view that, the appellant had failed to give evidence on how Hamidu Mgaya, who was an employee of the KMC obtained the plot and on the requisite procedure for the alleged transfer from him to the appellant. Relying on the evidence of DW3 and DW4 to the effect that Hamidu Mgaya did not apply for a right of occupancy, the learned Judge observed that, in the absence of evidence showing that Hamidu Mgaya had any right over the suit land, the allegation by the appellant that she was given the same by him is without merit because, for that reason, he had no title to pass over to the appellant. With regard to the evidence of DW1 and DW2, the trial court found the same to be contradictory in that, whereas DW1 testified that she carried out construction of a hut and a wall fence on the plot to the linter stage, DW2 testified that, he was the one who carried out that construction. The court was of the view that, the fact that the appellant did not carry out construction on the plot is supported by the evidence of PW2 who testified that, when he sold the plot to the respondent, there was an unfished building which the respondent finished its construction and let in his guard occupy it. 11 Having found that the respondent had proved his case, the learned trial Judge found the appellant's counterclaim devoid of merit and thus dismissed it. He consequently made an order that the respondent be issued with the relevant ownership documents and granted his prayers for perpetual injunction against the appellant and/or her agents and workmen or servants from interfering with the respondent's interests on the plot. He was also awarded the costs of the suit. Aggrieved by the decision of the trial court, the appellant preferred this appeal. She raised 8 grounds which after the Court had granted Mr. Turyamwesiga's oral application for amendment, are as follows: "1. The Honourable trial High Court had no pecuniary jurisdiction to hear and determine the suit 2. The Honourable trial High Court Judge erred in law for failure to give reasons for exercising jurisdiction as a successor Judge in the proceedings. 3. The Honourable High Court trial Judge erred in law to admit in evidence exhibit 'A'and on relying on it in his decision. 12 4. That the Honourable trial Judge misdirected himself by making a finding that, the disposition which affected land between Heaven Mtui (PW4) and the respondent was valid while it did not conform to the law on dispositions o f right o f occupancy and therefore no title could have passed from the seller to the buyer so as to entitle him to claim the land. 5. That the Honourable trial Judge failed to weigh the defendant's evidence against that o f the plaintiff's which was weak and o f no legal force. 6. That the Honourable trial Judge failed to consider that, even if the land claimed by respondent was customarily owned, the claim made 20 years after the said land was allocated to the appellant in 1988, the claim by the respondent was time barred. 7. The Honourable trial Judge erred in law and fact by ignoring the evidence o f Honest Kulaya (DW4), a legal officer from Ministry o f Lands and DW3 the land officer from Kinondoni Municipality while from their evidence, the records in both offices show that the owner o f the suit land was the appellant. 13 8. That the Honourable trial Judge greatly erred for failing to make a finding that the application for the suit land to the Municipal Council by the respondent was made after the appellant had already acquired the land twenty years ago and that, he applied for the land which could not be allocated to him because the alleged seller had no letter or offer or certificate o f title o f the land in question which was surveyed and therefore, had for those reasons, no title to pass". At the hearing of the appeal, the appellant was represented by Mr. Jethro Turyamwesiga assisted by Mr. Shukuru Khalifa, learned advocates. On his part, the respondent had the services of Mr. Robert Rutaihwa, learned advocate. In compliance with rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009, the learned advocates for the appellant and the respondent had filed their written submissions in support of the appeal and submissions in reply thereto, respectively. On the 1st ground of appeal, the learned counsel for the appellant argued that, the trial court did not have pecuniary jurisdiction to entertain the suit because, according to his evidence, the respondent bought the suit land at the prize of TZS 2,000,000.00. The appellants 14 counsel submitted therefore that, from that evidence, the value of the suit land was TZS 2,000,000.00 and because at the time when the suit was instituted, the jurisdiction of the High Court in land cases was TZS 50,000,000.00, it lacked jurisdiction to try the case. In reply to the arguments made on that ground, the respondent's counsel argued that, the value of the suit land, which at the time of the sale was an unsurvey land, was pleaded in paragraph 15 of the plaint to be TZS 50,000,000.00. He submitted that, since the appellant did not dispute that value but instead, indicated in paragraph 8 of her written statement of the defence that the same was noted, she cannot later be heard to dispute that value, even though at the end of that paragraph, she gave a general statement that, "...save that the defendant denies each and every allegation o f facts contained in the piaint as if the same were set out and traversed seriatim". The learned counsel reiied on the provisions of Order VIII rules 3 and 5 of the Civil Procedure Code, Chapter 33 of the Revised Laws (the CPC) to bolster his argument and prayed that, this ground of appeal be dismissed for want of merit. Determination of this ground of appeal need not detain us much. We hasten to agree with the learned counsel for the respondent that the 15 same is without merit. The value of the suit land was stated by the respondent in paragraph 15 of the plaint to be TZS 50,000,000.00. Reliance by the appellant on the evidence of PW2 that he purchased the plot for TZS 2,000,000.00 hence its value for the purpose of jurisdiction of the trial court, is in our view, incorrect. First, as argued by the respondent's counsel, according to PWl, the plot was purchased in 2004 while the area had not been surveyed and secondly, that the appellant did not dispute the value stated by the respondent at the time of filing the suit in 2008 after the survey whereby the area of the plot was increased. Since therefore, that value was not challenged by the appellant who indicated in her written statement of defence in paragraph 8 that she had noted it, by virtue of the provisions of Order VIII rules 3 and 5 of the CPC cited by the respondent's counsel, she had admitted the value of the suit land as stated by the respondent. We do not therefore, find merit in that ground and thus dismiss it. With regard to the 2nd ground of appeal, the counsel for appellant has challenged the impugned decision on the procedural issue that the trial Judge had failed to give reason for taking over the proceedings from the predecessor Judge (Ngwala, J.) who had recorded the evidence of 16 PW1 before the case was transferred to the successor Judge (Mgetta, J.). The learned counsel cited the case of National Microfinance Bank v. Augustino Wesaka Gidimara t/a Builders Paints and General Enterprises Ltd. [2017] TLS LR 311. In response, though admitting that Mgetta, J. took over the case from the predecessor Judge and proceeded to record the evidence of six witnesses for the plaintiff and four defence witnesses without assigning reasons for his take over, the learned counsel for the respondent argued that, the omission did not prejudice the appellant. He relied on the recent decisions of the Court including the case of Charles Chama and Two Others v. The Regional Manager TRA, Civil Appeal No. 224 of 2018 (unreported). He argued that, following the introduction of the Overriding Objective Principle, by virtue of section 3 of the Appellate jurisdiction Act Chapter 141 of the Revised Laws, unless the appellant was prejudiced, the omission would not have the effect of vitiating the proceedings. According to the learned counsel, the appellant was not prejudiced, more so because she was being represented by a counsel at the trial. 17 Having considered the rival arguments made by the learned advocates for the parties in this ground of appeal, we are of the considered view that, the omission complained of by the appellant is not fatal. Indeed, as argued by the learned counsel for the respondent, after introduction of the overriding objective principle vide the Written Laws (Miscellaneous Amendments) Act No. 8 of 2018, which requires the Courts to do justice without undue technicalities, unless the omission had prejudicated the appellant, it would not vitiate the proceeding. See for instance, the case of Ms. Flycatcher Safaris Ltd. v. Minister for Lands, Human Settlements Development and Another, Civil Appeal No. 142 of 2017 (unreported) which was decided after the introduction of the Overriding Objective Principle, the Court observed that: "...the procedural irregularity is cured by application o f the overriding (objective) principle as found in sections 3A and 3B o f the Appellate Jurisdiction Act, Cap. 141 RE 2019 (the A3A). Suffice to say, we have drawn inspiration from our holding in Chacha Bode v. Republic ■ Criminal Appeal No. 46 o f 2018 and Chacha Jeremiah Murimi and 3 Others v. Republic, 18 Criminal Appeal No. 551 of 2015 (both unreported)". Similarly, in the case of Nishati Plus Limited v. Nice Catering Co. Ltd. Civil Appeal No. 282 of 2020 (unreported), the Court relied on the decision in the case of Mariam Samburo v. Masoud Mohamed Joshi, Civil Appeal No. 109 of 2016 and stated as follows: "...the Court stressed the importance for successor judge or magistrate to assign reasons for succession because, among other things, it promotes accountability on the part o f the successor judge or magistrate. However, as the Court observed in Diamond Motors Limited v. K. Group (T) Limited, Civii Appeal No. 50 o f 2019 (unreported), while appreciating Maria Samburo (supra), each case must be decided based on its own circumstances, the focus being on whether the omission to assign reasons has prejudiced any o f the parties or not Based on the above and due regard being had to the operation o f the overriding objective principle, it is our considered view that whether the omission to assign reasons for succession o f trial judges or magistrates is fata! or not, depends on whether 19 the omission has prejudiced any o f the parties or not". Having found that the appellant was not prejudiced by the omission, the Court dismissed the ground of appeal based on the irregularity. In the case at hand, the appellant has not complained that the omission has occasioned her any prejudice. Her complaint is that the provisions of Order XVIII Rule 10 (1) of the CPC which requires a successor judge or magistrate to assign reasons for the take-over of proceedings from another Judge or Magistrate was not complied with. It is now trite law that, not every non-compliance with the procedural law vitiates the proceedings. See for example, the case of Flano Alphonce Masalu @ Singu and 4 Others v. Republic, Criminal Appeal No. 366 of 2018. In that case, we observed that: "... In our earlier decision in Jumanne Shabani Mvondo v. Republic, Criminal Appeal No. 282 o f 2020 (unreported) where we confronted an identical irregularity (failure to record separately the plea o f each accused person), we emphasized that in every procedural irregularity the crucial question in whether it has occasioned a miscarriage o fjustice" 20 On the basis of the above stated reasons, we find no merit in the 2nd ground of appeal and hereby dismiss it as well. On the 3rd ground, the counsel for the appellant faulted the High Court for having admitted in evidence the sale agreement document between the respondent and PW4. It was contended that the same was inadmissible because stamp duty was not paid in respect of it as required under section 46 (1) [now section 47 (1)] of the Stamp Duty Act, Chapter 189 of the Revised Laws (the Stamp Duty Act). He relied on the case of Malmo Montage Consult AB Tanzania Branch v. Margaret Gama, Civil Appeal No. 86 of 2001 (unreported). In reply, it was submitted for the respondent that, the omission to stamp the sale agreement did not render it inadmissible. The learned counsel for the respondent cited the case of Elizabeth Mboya v. Amina Abeid [2000] TLR 122 in support of his argument. It was his argument further that, the case of Malmo Montage Consult (supra) is distinguishable in that the proviso to the then section 46 (1) of the Stamp Duty Act was not considered. 21 We agree with the respondent's counsel that exhibit 'A' was not inadmissible because of the omission to stamp it. In the case of Elizabeth Mboya (supra), cited by the learned counsel for the respondent. In that case, the High Court had faulted the decision of the Resident Magistrate's Court on the ground that, it was based on the written contract which was not stamped in accordance with the Stamp Duty Act. On appeal, the Court held that: "Failure to stamp the contract o f sale was an irregularity not affecting jurisdiction o f the Court and was cured by section 73 o f the Civil Procedure Code, 1966. The respondent is ordered to pay the duty with which the instrument is chargeabid'. Guided by the above stated position, we find no merit in the 3rd ground of appeal. The same is dismissed. We order that the stamp duty be paid by the respondent at the rate the instrument was chargeable at the time of the sale agreement. With regard to the 4th ground of appeal, the learned counsel for the appellant did not argue it in his written submissions. He however, submitted on that ground in his oral arguments. According to the learned 22 counsel, from the evidence, at the time when the suit land was sold, the same was being legally occupied by the appellant He referred to the evidence of DW4 and submitted that the disposition of the plot between the respondent and PW4 was ineffectual because, PW4 did not have any right to transfer to the respondent. In response, the respondent's counsel argued that, PW4 disposed of the plot while the same was in his ownership. Relying on exhibit 'A', Mr. Rutaihwa submitted that, unlike the appellant, who did not tender any document to support her claim of ownership, the respondent's evidence outweighed that of the appellant because he tendered a sale agreement, exhibit 'A' in support of his evidence that he bought the plot from PW4. Grounds 5, 6, 7 and 8 correlate with ground 4 of the appeal. The appellant's complaint is that the High Court misapprehended the evidence and thus failed to find that the appellant was the lawful owner of the suit land. Submitting on the 5th and 6th grounds, the learned counsel argued that, from the appellant's evidence, which was supported by her letter of offer of the plot, she was in occupation thereon since 1989 and therefore, the respondent's contention that he purchases it 23 from PW4 in 2004, should not have been accepted by the trial court because, at that time, PW4 was not the owner thereof. The learned counsel argued further that, since the suit was filed in 2008 while the appellant had been in occupation of the plot since 1989, the case was filed out of time. According to the learned counsel, had the trial court properly evaluated the evidence, it would have found the suit time barred and the appellant should have been declared the lawful owner of the suit land. On the 7th and 8th grounds, the learned counsel for the appellant faulted the trial court contending that, it failed to consider the evidence of DW3 and DW4 who testified that, according to the official records of their respective land departments, records as at the material time of their testimony, the suit land was in the name of the appellant since the time when it was plot No. 786 and after survey when it was re­ designated as plot No. 2059. Responding to the arguments made in support of the 4th ground of appeal, Mr. Rutaihwa submitted that, the respondent adduced credible evidence on the ownership by him, of the suit land. Making reference to 24 exhibit 'A', he argued that, whereas the disposition by PW4 was documented, the contention by the appellant that the plot was given to her by Hamidu Mgaya was not supported by any documentary evidence. On grounds 5, 6, 7 and 8 in which, like the 4th ground, the complaints are centred on the probative value of the evidence, the respondents counsel had the following argument in reply: first, the evidence of the respondent and his witnesses clearly showed the history of ownership of the suit land which, before it came to be owned by PW4 who disposed it to the respondent, had changed hands from one Kilambata to another previous owner known as Richard Rugemalira. He stressed that, such history of ownership was confirmed by PW3 and PW5 who were at the material time, the Mtaa Chairman and Mtaa Executive Officer, respectively. With regard to the appellant's contention that she was granted a letter of offer (exhibit Dl), Mr. Rutaihwa disputed that document arguing that the same could not have been issued without there being an application by the appellant, who had admitted in her evidence at page 213 of the record of appeal that, she did not apply to be allocated the plot. On the evidence of DW3, the learned counsel argued that, the 25 same was of lesser weight compared to that of PW6 because, whereas the latter was in office and acted in resolving the dispute between the parties, the former came into office later when the case was already filed in Court and his evidence on how the appellant came to own the suit land was unsubstantiated. On the point of law raised in grounds 6 and 8 that the suit was time barred, it was the submission by the respondent's counsel that, since there was no evidence from the said Hamidu Mgaya that he had ever occupied the suit land, the two grounds of appeal are meritless. Relying on the decision in the case of Obedi Mtei v. Rukia Omari [1989] T.L.R, 111 the learned counsel argued that, since no one from the area at which the suit land is situated was called to testify that Hamidu Mgaya had ever occupied plot No. 786, the evidence of resurvey relied upon by the appellant was insufficient to challenge the ownership by the respondent. Submitting further against the arguments made in support of the 7th ground of appeal, the respondent's counsel contended that, although DW3 (the Land Officer, KMC) and DW4 (the Legal Officer, Ministry of Lands) had testified for the appellant, their evidence that the suit land 26 belonged to Hamidu Mgaya and that the same was later acquired by the appellant, was not substantiated. We have duly, considered the submissions of the learned counsel for the parties on grounds 4 to 8 of the appeal. In determining them, we wish to start with grounds 4, 5 and 7 in which, as observed above, the appellant challenges the findings of the trial court contending that they were based on insufficient evidence. It is trite law that, this being a first appeal, the Court is entitled to re-evaluate the tendered evidence and come to its own conclusion. See for example, the cases of Iddi Shaban @ Amasi v. Republic, Criminal Appeal No. I l l of 2006 (unreported) and Pandya v. Republic [1957] E.A. 336. Having re-evaluated the evidence, we agree with the finding of the trial court that the evidence of the respondent and his witnesses sufficiently proved that plot No. 786 which, after the area was re­ surveyed became No. 2059, belonged to the respondent who bought it from PW4. That finding was arrived at following the adduced evidence on the history of ownership of the suit land beginning with one Kilambata who owned it way back before the area was surveyed and that of PW4 who sold it to the respondent. With regard to the evidence 27 of the appellant and her witnesses, we also agree with the trial court that, apart from being contradictory as regards the developments said to have been made on the plot by her, unlike the appellant's evidence, was insufficient to establish that she had acquired the plot from one Hamidu Mgaya. Whereas the respondent relied on the evidence of the neighbours, local authority leaders and the sale agreement, the respondent depended on her oral evidence that the plot was given to her by Hamidu Mgaya. She could not call the said person to testify or substantiate her contention that the plot was given to her by him. Furthermore, there was no evidence showing that Hamidu Mgaya had ever owned the plot or the background facts on which the same came to be allocated to him. With regard to the letter of offer tendered by the appellant, she admitted in her evidence that, she obtained it without having formerly applied for it. She did not as well, tender any evidence showing how Hamidu Mgaya obtained the plot; whether it was after he had applied to be granted an offer of a right of occupancy or by purchasing it. Clearly therefore, the letter of offer (exhibit D3) is unreliable and invalid. 28 For these reasons, we are of the view that, the learned trial Judge was entitled to find that, on the balance of probability, the evidence of the respondent had more weight than that of the appellant as regards the ownership of the suit land. Grounds 4, 5 and 7th, which are lacking in merit, are thus dismissed. Having found that the evidence of the respondent was credible thereby proving his ownership of the suit land, the issue of limitation raised by the learned counsel for the appellant in grounds 6 and 8 will not detain us. The respondent filed the suit on 25/6/2008, about 4 years after he had purchased the suit land on 10/5/2004. On 11/2/2006, he formerly applied to be granted a right of occupancy. It was then that he learnt of the appellant's possession of the questionable letter of offer of plot No. 786 shown to have been issued on 11/1/1989. We have found above that, the document is invalid because it could not have been issued without there being an application made by the appellant. On his part, the respondent was in occupation of the suit land from the date on which he purchased it from PW4. For that reason, the cause of action arose in 2006 when he was informed that the appellant had also claimed ownership of the suit land. The suit was therefore, not time barred. The point of law on limitation raised by the appellant's counsel is thus devoid of merit. It is accordingly dismissed. On the basis of the above findings, we find the appeal devoid of merit and consequently dismiss it in its entirety with costs. DATED at DAR ES SALAAM this 21st day of May, 2024. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 22nd day of May, 2024 in the presence of Mr. Theodor Primus, learned counsel for the respondent and also holding brief for Mr. Jethro Tulyamwesiga, learned counsel for the appellant, is hereby certified as a true copy of the original.