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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 11995 OF 2024 (Arising from Land Application No. 345/2017of District Land and Housing Tribunal for Kinondoni at Mwananyamala) FURAHA FOLOQUET BISHOTA................ APPELLANT VERSUS MOHAMED MSUMI..................................................... RESPONDENT JUDGMENT 4h September 2024 & 3(4h October, 2024 L, HEMED, J. FURAHA FOLOQUET BISHOTA the Appellant herein and MOHAMED MSUMI, the respondents herein own adjacent pieces of land at Kwembe street, Kwembe ward, Ubungo District in Dar es Salaam. The Appellant purchased her piece of land on 16th May, 2008 from one Mr. George Njewele who acquired the same on 14th June 1990. On his part, the Respondent acquired his piece of land of one (1) acre size from one Hashimu Matwani on 22nd June, 2001. The dispute arose in 2008 when the Respondent herein allegedly to have removed the cassava plants, which used to demarcate their pieces of land and replaced them by concrete poles. It was averred that during the i n replacement of the said concrete poles, the Respondent invaded to the Appellant's piece of land to the extent of 3/4 of an acre. In the year 2008, the matter was taken to the ward tribunal and later on to the District Land and Housing Tribunal by way of appeal which ended up on technical ground for having commenced at the court/tribunal which had no jurisdiction. In 2017, the Appellant herein knocked the gates of the District Land and Housing Tribunal for Kinondoni and lodged Application No.345 of 2017 claiming to be the owner of the suit piece of land. She also prayed for removal of the respondent's own made demarcations and for restoration of the original demarcation. The Appellant further prayed for damages of TZS 30,000,000/-. The herein respondent disputed the entire claims made by the Appellant before the trial Tribunal. He asserted to be the owner of the said piece of land and urged the trial Tribunal to dismiss the claims presented before it by the herein appellant. 2 n The records of the trial Tribunal reveal that the guiding issues of the trial were two. One, who is the lawful owner of the disputed land; and Two, to what reliefs are the parties are entitled to. Having heard testimonies of five (5) witnesses, four (4) being witnesses called by the herein Appellant and one (1) paraded by the Respondent, the trial Tribunal came up with the verdict that the Appellant is not the owner of the suit piece of land. It ended up dismissing the entire suit without costs. The Appellant was aggrieved by such decision hence the present appeal on the following grounds: - 1. The trial erred in law and in fact by considering and relying on fabricated evidence of DW1 based on extraneous matters allegedly relating to prior cases the proceedings of which that were not before the tribunal without satisfying itself of correctness of such evidence based on actual records of those proceedings. 2. The trial erred by following the opinions of the assessors that were actuated by speculations and assumptions as opposed to facts. 3. The trial tribunal erred by according enormous weight to and relying solely on uncorroborated evidence of GW1 who was the sole witness of 3 the respondent and disregarding the credible evidence of the Applicant adduced by PW1, PW2, PW3 and PW4 in favour of her case. 4. The trial tribunal erred in law and fact by failing to analyze when cause of action arose. 5. The trial tribunal erred by not observing the rule against bias when evaluating and according weight to the evidence of both the appellant and the respondent." Hearing of the appeal was done by way of written submissions, which were filed promptly pursuant to the filing schedule directed by this court. Mr. Shiza Ahmed John, learned advocate acted for the appellant while the respondent enjoyed the legal service of Mr. Meswin Joseph Masinga, the learned advocate, represented the appellant. Having gone through the rival submissions, it is apt to determine the merit of each ground of appeal. I have opted to determine the grounds of appeal seriatim as presented and argued by the parties. In the 1st ground, the Appellant faults the decision of the trial Tribunal by considering and relying on fabricated evidence of DW1 allegedly to be based on extraneous matters relating to prior cases the proceedings of which were not before the trial Tribunal without satisfying 4 itself of correctness of such evidence based on actual records of those proceedings. It was argued by the learned advocate of the Appellant that the trial tribunal heavily relied on the evidence of DW1 in connection with existence of and decision in previous decisions which we no longer in existence. The learned counsel was of the opinion that the trial tribunal should not have relied on the alleged prior cases because no decision or record whatsoever was produced before the tribunal for consideration. In the absence of the records, the evidence of the said decision was a mere fabrication and extraneous. In response thereto, the respondent's counsel contended that the trial chairperson did not decide the matter based on the said non-existent decisions. He insisted that the previous decisions have been referred in the judgment of the trial Tribunal just to trace the history of the dispute. I have keenly revisited the proceedings and the judgment of the trial tribunal to find out if at all the decision was made based solely on the previous non-extent decisions. In the course of reading the judgment, I found that reference to the said previous decision was stated by the trial Tribunal while making summary of what was testified by the witnesses. I noted that the testimony concerning the previous cases was given by DW1. 5 However, in deciding the matter before her, the trial chairperson weighed evidence given by the Appellant herein to find out if at all it proved the claims presented before the tribunal. I am holding so because the principle actori incumbit onus probandi' xeqwes the person who alleges to prove. In our jurisdiction, this principle is provided in section 110(1) of the Evidence Act [Cap.6 R.E 2019] thus: - "Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.zz The above provision has been echoed in plethora of decisions including that of the Court of Appeal of Tanzania in Leonard Dominc Rubuye t/a Rubuye Agrochemical Supplies vs. Yara Tanzania Limited, Civil Appeal No.219 of 2018 where it was held thus: - "it is well settled position that the onus of proving existence or non-existence of any fact lies on the party asserting its existence or non-existence..." In the matter at hand, the Appellant is the one who instituted the suit alleging to be the lawful owner of the disputed piece of land of approximately 3.5 acres. She also alleged that the Respondent had 6 trespassed into it taking 3/4-acre size. It was thus the duty of the Appellant to prove to be the lawful owner of the said piece of land of 3.5 acres to establish the alleged encroachment. The question that arises is whether the Appellant proved her claims. I have revisited the amended Application which the Appellant used to initiate proceedings at the trial Tribunal and found in paragraph 6(a)(1) being stated as follows: "i) That the Applicant is the rightful and legal owner of approximately 3.5 acres of the suit premises." [Emphasis added] According to the above facts pleaded in the Amended Application, the Appellant was not certain even in her pleadings in regard to the size of the suit land she was claiming. I am aware that of the trite principle of law that parties are bound by their own pleadings propounded in numerous decisions of courts including in Barclays Bank (T) Ltd vs Jacob Muro, Civil Appeal No. 357 of 2019 thus: - "We feei compelled, at this point, to restate the time-honored principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not 7 support the pleaded facts or is at the variance with the pleaded facts must be ignored." In the light of the above laid principle, though not certain, the Appellant was bound to prove that the size of the land claimed was approximately 3.5 acres. Exhibit Pl, the sale agreement purportedly to be used by the Appellant to purchase the suit landed property shows that the size of the suit land was approximate 4 acres. PW1, the vendor, also testified to have sold to the Appellant a piece of land measuring four (4) acres. This clearly shows that evidence that was adduced by the Appellant was inconsistent to what was pleaded in terms of the size of the landed property claimed. From the foregoing, I find that the trial Tribunal did not rely on fabricated evidence of DW1 based in extraneous matters allegedly relating to prior cases. The Appellant failed to discharge her duty to prove her claims before the trial tribunal. I find no merit in the 1st ground of appeal. In respect to the 2nd ground of appeal, the Appellant is faulting the decision of the trial Tribunal by following the opinion of the assessors alleged to be actuated by speculations and assumptions as opposed to facts. It has been submitted by the counsel for the appellant that the opinion of the assessors summarized in the judgement ought to have been 8 rejected by the trial chairperson because do not come from facts. He asserted that facts were produced by PW4, the previous owner who described all boundaries thoroughly including all neighbours and respective neighbouring plots around the suit land. In response, the counsel for the Respondent contended that the learned counsel for the Appellant has failed to apprehend what the assessors have opined. According to him the opinion of assessors was based on evidence testified before the trial tribunal. It is de jurettxaK. at the conclusion of hearing, assessors who presided together with the chairperson to determine the matter are required to give their opinion, which must be considered by the chairperson in his/her judgment. This position is provided under section 24 of the Land Disputes Courts Act [Cap.216 R.E 2019] thus: - "Z/7 reaching decisions the chairman shall take into account the opinion of the assessors but shaii not be bound by it, except that the chairman shall in the judgment give reasons for differing with such opinion." In the light of the above provision, what the assessors give is a mere opinion that does not bind the chairperson. I have read the 9 opinion of the assessors on record and found that both were of the view that the respondent did not trespass into the suit land. Their opinion was based on the fact that the Respondent had purchased his piece of land way back in 2001 while PW4 was still owning the piece of land he sold to the appellant and there was no dispute between PW4 and the Respondent. The dispute arose in 2008 when the Appellant purchased the land from PW4. I have read the judgment and found that the trial chairperson agreed with the opinion of the assessors to the extent of dismissal of the claims however, her analysis was that the Appellant did not manage to prove her claims. In other words the trial chairperson did not buy everything that was in the opinion save for the conclusion. The trial chairperson, prior to her statement of agreeing with the opinion of assessors, analyzed evidence and found that the Appellant had failed to prove her claims. In that regard, I find the 2nd ground of appeal short of merit. The 3rd and 5th grounds of appeal were argued together. The 3rd ground of appeal was on the trial Tribunal reliance solely on uncorroborated evidence of DW1 who was the sole witness of the io respondent and disregarding the credible evidence of the Appellant adduced by PW1, PW2, PW3 and PW4. The 5th ground was on failure to observe the rule against bias when evaluating and according weight to the evidence of both the appellant and the respondent. The appellant's submissions in respect to the 3rd and 5th grounds was to the effect that the four (4) witnesses of the appellant's case appear on the sale agreement which was tendered as exhibit Pl. It was added that their involvement in the transaction pertaining to the dispute corroborated each other at all levels thus revealing an unbroken coordination of events pertaining to passing of ownership from the vendor who is PW4 to the buyer who is the Appellant. It was averred that the respondent failed to procure critical witnesses such as the seller or any of the witnesses appearing on the sale agreement or any of the alleged neighbours to establish his claim of ownership and boundaries. In response thereto, the learned counsel for the respondent was of the view that the number of witnesses does not make any different so long as evidence suffices. He relied in the case of Yonanis Msigwa vs Republic [1990] TLR 148. li In the matter before the trial tribunal there was no dispute that the Appellant had purchased a piece of land from PW4 vide Pl. It was also not in dispute that the Respondent herein through exhibit D-l had purchased another piece of land from one Hashimu Matwani. PW4, the vendor to the Appellant told the trial Tribunal that, Hashimu Matwani's piece of land bordered his land on the west part. The Appellant's duty was to prove that the Respondent who had purchased the piece of land from Hashimu Matwani had encroached into his piece of land. I am at one with the learned counsel for the Respondent that in proving a case the number of witnesses does not count. This is provided under section 143 of the Evidence Act [Cap.6 2019] thus: - "Subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any fact." The above position of law was insisted in Hemedi Saidi vs Mohamedi Mbilu [1984] T.L.R 113 where it was stated thus:- "//7 measuring the weight of evidence it is not the number of witnesses that counts most but the quality of the evidence..." 12 Going through evidence which was adduced by the appellants witnesses, one finds that all of them only concentrated to prove the obvious fact that the Appellant had purchased a piece of land in 2008 from PW4. However, all of the witnesses could not manage to adduce evidence which would establish the size and boundaries of the piece of land said to belong to the appellant. Though, evidence adduced by the Appellant especially by PW2 and PW4 was to the effect that in the wept part of the Appellant's piece of land was bordering the land of one Hashimu Matwani, the person who sold land to the Respondent herein, they could not say what was the size of such land. They also failed to prove the extent of trespass. In the instant case, in order to prove trespass, the Appellant ought to have proved the size of her land for purposes of establishing the extent of trespass. All witnesses of the Appellant failed to prove the said fact. I have also found that in composing judgment, the trial Tribunal did not base on the evidence of DW1 rather on analysis of the whole evidence on record. In that regard, I find no merit in the 3rd and 5th grounds of appeal. The 4th ground of appeal concerns with failure of the trial tribunal 13 to analyze when cause of action arose. It was asserted that the complaint was on the demarcation erected by the Respondent in the suit land six months after acquisition of the same and not about the old demarcations allegedly to be erected in 2002. According to the learned counsel, the trial Tribunal ignored in deciding on the demarcations erected by the Respondent in 2008, which was also proved by the witnesses of the Appellant. Replying thereto, the counsel for the Respondent contended that the cause of action was on trespass. It has been argued by the counsel for the Respondent that even the issues were framed based on the cause of action presented by the Appellant. I have keenly gone through the Amended Application which the Appellant herein presented before the trial Tribunal to initiate legal proceedings. In the said pleading, the appellant alleging to be the owner of the suit landed property and that the Respondent herein had trespassed into it. I have gone through the proceedings of the trial tribunal and found no evidence tangible to prove the alleged trespass. With regard to the poles alleged to have been erected in 2008, by the Respondent, PW2 told the tribunal that the Respondent did remove the 14 former 'Mihogo Mipira' used to demarcate the disputed land and replaced them with concrete poles. It was not said how the replacement of the former demarcation marks amounted to trespass. On his part, PW4 (the vendor) adduced that concrete poles demarcated the piece of land in dispute. However, he could not tell, when and who erected the said concrete poles. This kind of testimony could not as well prove the allegation of trespass. As previously said, in the circumstance of this case, the claims of trespass could only be proved by establishing in certain terms the size of the landed property which the Appellant owned and the extent to which the Respondent encroached into it. I have also noted from the pleadings that the Appellant pleaded contradictory statement in respect to the extent of trespass. This is evident from paragraph 6(a) (iv) & (vii) of the Amended Application which provided different extent of trespass as reproduced hereunder verbatim: - "iv) That the boundaries are very well known and established for more than 20 years; however, within six months of acquisition of the suit premises by the 15 Applicant, 3A of an acre of the disputed land was encroached/ trespassed by the Respondent." [Emphasis added] The Appellant proceeded to plead in paragraph 'vii' thus: - vii) The Respondent has recently removed the "Mihogo Mipira" used for demarcating the disputed land and has now replaced them with concrete poles, expanding his area so to speak to acquire almost an acre of the disputed land..." [Emphasis added] The above two paragraphs are contradictory in terms of the extent of trespass alleged. In paragraph 'iv' the Appellant was claiming that the Respondent had encroached into her piece of land to the extent of 3A an acre while in paragraph 'vii' she alleged encroachment to the extent of one (1) acre. My firm view is that, in the circumstance like the one at hand, where the facts pleaded in respect of the claim contradict, no evidence adduced before the court/tribunal can be said to prove either of the contradicting fact. I am holding so based on the time-honored principle of law that parties are bound by their own pleadings. 16 In the final .analysis, I find that all grounds of appeal have no merit. :/.--- Therefore, Mi^j^tfife^iitire appeal with costs. It is so ordered. DATED at/DAjfefeS^AbKAM this 30th of October 2024. > /£' K • lFheme^ JUDGEV 17