CIVIL APPEAL NO 603 OF 2023 GODFREY RUSIMBI VS HAJI MOHAMED RAMADHANI

IN THE COURT OF APPEAL OF TANZANIA

AT TABORA f CO RAM: LILA, J.A.. FIKIRINI. J.A. And KENTE. J.A.^ CIVIL APPEAL NO. 603 OF 2023 GODFREY RUSIMBI........................... .......... .............. 1st APPELLANT STANSLAUS KILAZAGAYE............................. .......................2nd APPELLANT

VERSUS HAJI MOHAMED RAMADHANI .............. ................. ..............RESPONDENT (Application from the Judgment and Decree of the High Court of Tanzania at Tabora) (Bahati, J.l dated the 3rd day of September, 2021 in Land Appeal No. 19 of 2019

JUDGMENT OF THE COURT 10th November, 2024 & 31st January, 2025 LILA, 3.A.: This appeal has a protracted history. The parties appeared twice before the High Court of Tanzania, Tabora District Registry. Neither party succeeded in the first appeal to the High Court from the District Land and Housing Tribunal for Tabora at Tabora (the Tribunal) as the trial was found to have been tainted with some irregularities and it was ordered that the matter be heard afresh by the Tribunal before another Chairman and a set of assessors. The hearing was ordered to proceed on the basis of the pleadings filed by the parties. In compliance with the order, the Tribunal heard and determined the matter in favour of the respondent. The appellants appealed to the High Court where they, again, lost hence this appeal. The dispute between the parties centered on ownership of a piece of land situate at Tuli Sub-Village, within Ifucha Village, Ifucha Ward. The appellants (then applicants) who testified as PW1 and PW2, claim of ownership traced back to the year 2013. They claimed that they were together allocated twenty acres of land by Tuli Sub-Village which issued them with offer and were given conditions that they should develop the land by clearing it and also they have to participate in the development activities of the village. They were also directed to seek and obtain from the Village Authority a

customary Title to the land (Hati Miliki ya Kimila). According to both appellants, they processed for the same and the Village meeting held on 4/5/2017 approved them and were issued with Title Deed on 6/5/2017. The attempt to comply with the second condition of clearing the land was a total failure as one Paulo who they had engaged to do the clearing work was chased by the respondent claiming the farm to be his. Efforts to resolve the dispute at the sub-village level bore no fruits because the respondent refused to attend the meetings organized by the sub­ village leadership. Consequently, they resorted to instituting a suit at the Tribunal. Jumanne Msalali Mbushi (PW3) who was the Tuli sub-village chairman from 2010 to 2014, testified that the appellants were allocated the twenty acres of land by the Tuli Sub-Village at the time he was a Chairman in 2013 during which time many other people were also allocated pieces of land. Explaining the process of allocation, he said the sub-village allocated land after being authorized by the Village Land Council. According to him, the allocation was conditional that the allocated person should clear the land within three years otherwise the land would be reallocated to another person. Elizabeth Raphael Tumbo (PW4) testified that the appellants were allocated land by the Tuli Sub-Village council in 2013 and were recognized by the Village

Land Council which later issued them with the title deed to the land. Joha Ally Ramadhani (PW5), who was a Land Committee member at Ifucha Village, informed the Tribunal that she witnessed the appellants being allocated the land which was then a forest and undeveloped. As opposed to the appellants, the respondent (DW1) traced his ownership of the land since October, 2005 when one Sospeter who was his neighbor told him on 15/10/2005 that he had bought two farms each having twenty (20) acres at TZS 400,000.00 from the Tuli Village leaders namely Haji Rajabu, Ten Cell leader one Leonard Kamfa and one member of the Sub-Village Chairman one Jumanne Msalali Mbushi (PW3) around which he planted sisal plants as bounderies. Regarding how he came by the farm, he said, Sospeter engaged him to clear the farm, build a two- roomed house, dig a water bore hole and cultivate a one acre for cattle feeding and one acre of wetland area for paddy cultivation at TZS 500,000.00 which he did assisted by one Said Juma and that Sospeter was regularly going to check them. That, later, Sospeter informed him that his wife was sick and he was to escort her to Kilimanjaro. On his return, DW1 said, Sospeter told them his wife died and they should not proceed with the clearing of the farm as he wanted to sell the farm. That on, 5/2/2006, Sospeter handed the farm to him in writing before the Sub- Village

leadership and continued cultivating paddy, maize and "kunde" in the farm and was sometime visited by PW3 who asked him to sell five acres to him but he refused. That he continued using the farm including taking steps against those who fed their cows on the farm and each time was given letters by Ifucha Village authority to take it to the police station. Explaining how the dispute started, he said, after harvesting his crops in 2012, in 2013, his wife and children went to the farm where they found two persons employed by the 2nd appellant to clear the land. That, earlier in 2014, the appellants sued him over the land but he won but, on appeal, a hearing de novo was ordered by the High Court. In support of the respondent, Asia Abdallah Mayunga (DW2), testified to the effect that he was a "shamba" boy of Sospeter who got problems and left the farm to the respondent, her husband. After hearing both sides' evidence, the Trial Tribunal formulated two issues to guide it in the determination of the application which are one; whether the parties legally acquired the suit land and two; whether the respondent has trespassed into the applicants' piece of land. The tribunal, in its judgment, made reference to various documents particularly at pages 75 and 76 of the record of appeal which formed the basis of its findings. For instance, at pages 75 to 76 of the record, it stated that: - "DW1

produced documents received as exhibit D1 which was a handling docum ent from Sospeter but had the sea! o f Isevya instead o f Tuii as he testified. He produced also Exhibit D2, D3, D4, D5, D6 and D 7 which were letters he was w riting and was replied when forw arded h is problem with one John Sabuni who fed h is cattle a t the su it land. PW1 and PW 2 did not produce any docum ent from the Tuli Sub-Village o f the Ifucha Village as both testified even the application form is not attached with the agreem ent o f occupancy and ownership between applicants and the Kitongoji leadership and council members. I see the respondent has proved his case because, the Tuii sub-village heard him and forw arded his concern o f cattle feeding to the Ifucha ward and the Isevya police station. To me means they recognize him ..." In its verdict against the appellants, the Tribunal, relying on such documents, stated that: - "PW1 argued that the documents could be o f other farms. I do not see the argum ents to hold water because a t the locus visit PW1 did not show other farm s DW1 have at Tuli to substantiate his arguments. Section 8(5) o f the Village Actf Cap 114 provided that, the village council sh all not allocate or grant a custom ary right o f occupancy w ithout p rio r approval o f the Village assembly. The PW1 and PW 2 did not produce o f the sub-village m eeting which deliberated on

their allocation. Morever, as p er section 8(5) o f the Village Land Act, the proper allocating authority is the village and not the sub-village . " And finally, applying the principle of land to the tiller, propounded in the case of Village Chairman KCU Mateka vs Anthony Hyera [1988] TLR...., the Tribunal held that: - "For the foregoing observations, the issue is answered that both parties ille g a lly acquired the su it land but the respondent has been favoured by the doctrine o f land to the tille r." This finding aggrieved the appellants who preferred an appeal to the High Court which dismissed the appeal on two reasons. First; the allocation of land to the appellants was illegal and two; the documents of the respondents (exhibits) were irregularly tendered and endorsed but the defect, in terms of section 45 of the Land Disputes Courts Act, Cap 216, did not occasion an injustice to any of the parties hence she ignored the defect. Before the Court, the appellants have brought to the fore nine (9) grounds of appeal of which three grounds (grounds Nos. 1, 2, and 3) challenge the Tribunal and the High Court for relying on the documents not tendered and admitted during trial so as to form part of the evidence, the documents are forgeries and not authentic. The substantial part of the written submissions lodged by the appellants, admittedly, constitute arguments on these

grounds. We first heard the parties on 7/8/2024 during which, they appeared in persons and unrepresented. Each side adopted, as part of its arguments, the written submissions and reply submissions they had earlier on lodged in terms of Rule 106(1) and (7) of the Tanzania Court of Appeal Rules, 2019. However, having studied the record of appeal, it appears that the disputed exhibits D l, D2, D3, D4, D5, D6 and D7 formed the foundation of both the Tribunal's and High Court's findings in favour of the respondent. They were heavily relied on in the determination of the parties' rights. But upon perusing the record of appeal, our eyes landed on the proceedings of the Tribunal dated 31/01/2019 found at page 34 of the record of appeal: - "D ate: 30/01/2019 B e fo re : Hon. P. Chinyeie - Chairman A sse sso rs: 1. Mrs. Rukia Mgumia 2. Mr. Jum a Hassan A p p lica n t: Present R esp on d en t: Present T /C le rk : Getruda V. Kaguli TR IBU N AL: - The m atter com es fo r hearing. H aji Mohamed: I am not ready because I am sick. 1st a p p lica n t: I pray to am end m y application because there are docum ents we did not annex in the form er application also there are necessary parties to be joined in the side o f the respondent The docum ents are title deed and other docum ents during the pendency o f the su it R esp on d en t: I object the amendment because they had the opportunity to am end but they did not T rib u n a l: The Honourable Judge o f the High Court ruled out that the m atter be tried de novo on the basis o f the pleadings that were file d in the m atter. O rder: - 1. Hearing on 31/1/2019 2. Summons to Elizabeth Raphael Tumbo, Jum anne M bushi S a la li and Joha Ally.

3. Parties to appeal. 2 " Similar complaints of being denied the right to present before the Tribunal additional documents (exhibits) by the trial Tribunal to be a misdirection on the part of the Tribunal resurfaced before the learned Judge, on appeal, at page 213 of the record of appeal. It may be easily observed from the above excerpts that there was a threshold irregularity that obtained touching on the disputed documents which were allegedly not tendered during trial and now forming a substantial part of the appellants' appeal before the Court. The excerpts reflect the conduct of the trial by the Tribunal after the High Court had ordered the matter to be heard afresh due to certain irregularities it had noted. Cognizant of the fact that neither of the parties' respective written submissions nor orally, addressed the Court on this issue, we summoned them again on 19/11/2024 to exercise their fundamental right to be heard and were duly virtually linked to the Court. Addressing the Court, the 1st appellant, admitted that he made the prayer to amend the pleading but was refused leave and admitting his ignorance with legal matters, he left it to the Court to determine on the serious nature of the anomaly. The 2nd appellant shared views with the 1st appellant. On the part of the respondent, he toed with the Tribunal supporting it to have been right to refuse to grant leave to

amend the pleadings. We propose to begin with the law governing production of documents which were not annexed to the pleadings before the Tribunal and subsequent amendment of pleadings before the tribunals. The guiding provision is Regulation 10 of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2003 (the Regulations) which provides for the manner in which a party to a land dispute may produce or amend the pleading. It provides: "10(1) The Tribunal m ay a t the first hearing, receive docum ents which were not annexed to the pleadings w ithout necessarily follow ing the practice and procedure under the C ivil Procedure Code, 1966 or the Evidence Act, 1967 as regards documents. (2) Notw ithstanding sub-regulation (1) the Tribunal may, a t any stage o f the proceedings before the conclusion o f hearing allow any party to the proceedings to produce any m aterial docum ents which were not annexed or produced earlier a t the first hearing. (3) The Tribunal sh all before adm itting any docum ent under sub-regulation (2) - (a) ensure that a copy o f the docum ent is served to the other party; (b) have regard to the authenticity o f the docum ent" It is evident from the plain reading of the Regulation that the Tribunal is not bound by the procedure of tendering documents during trial provided by the Civil Procedure Code (the CPC) and the Law of Evidence

Act (the EA). The procedure is so much relaxed such that it gives allowance to the parties to produce documents in the manner the Tribunal determines for the purpose of dispensing justice to the parties. Similarly, a party may, with leave of the Tribunal, amend his pleading at any time before conclusion of the hearing. It therefore means that a prayer to amend pleadings should therefore be granted by the Tribunal before closure of the hearing of the matter by the parties to the dispute. It needs not be overemphasized that pleadings are for the parties to the dispute as well as the court or Tribunal as they bring to the knowledge of the parties to the case and the court or tribunal of the nature of the case they are going to face. Reinforcing such stance, in James Funke Ngwagilo vs Attorney General [2004] T.L.R. 161 cited by the Court in the unreported Civil Appeal No. 236 OF 2020, Jovent Clavery Rushaka and Another vs Bibiana Chacha, the Court restated that: - "The function o f pleadings is to give notice o f the case which has to be met. A party m ust therefore so state his case that h is opponent w iii not be taken by surprise. It is also to define with precision the m atters on which the parties d iffer and the points on which they agree, thereby identify with clarity the issues on which the Court w ill be called upon to adjudicate to determ ine the m atters

in dispute..." The first guidance from the above pronouncement is that parties should be permitted to amend their pleadings at any time. Second, the pleadings guide the parties on the parameters and boundaries within which they have to lead evidence for and against For the two reasons, pleadings serve as a shield against surprises as the parties are made aware of the dispute. Obviously, in granting the prayer, the party seeking amendment is not given a blank cheque to do whatever he wants but the Tribunal should at all times set limitations so as to ensure that such amendment does not introduce a new cause of action. Interpreting an identical provision in the Civil Procedure Act, Cap 33 (Order VI Rule 17), the Court, in the case of Salum Abdallah Chande t/a Rahma Tailors vs The Loans and advances Realization Trust (LART) and Two Others, Civil Appeal No. 49 of 1997 (unreported) cited by the Court in Jovent Clavery Rushaka and Another vs Bibiana Chacha, Civil Appeal No. 236 of 2020 (unreported) categorically pronounced that: - "we think it is dear that once pleadings have been filed, they can only be altered or am ended with the leave o f the Court. The court w ill set the param eters within which the alteration or the amendments w ill be made, hence the m anner and term s which ensure ju stice to the p arties" Before the Tribunal, it was not disputed, that the learned judge

who first heard and determined the appeal ordered the case be re-heard on the pleadings the parties had filed. A yawning question begging for deliberation is whether, by such order, the learned Judge meant that parties should not have been permitted to amend the pleadings they had already filed if they so wished. Since, as demonstrated above, amendment of pleading is a legal right and is governed by law, it does not occur to us that the learned Judge's order meant and would be able to deny the parties such right. It appears to us that the Tribunal misinterpreted the Judge's order. All that the order meant was that the proceedings and the Tribunal decision were nullified but the pleadings remained. They were therefore the starting point and, as the law permits, the parties were not barred from amending them at any time to suit their needs. The Tribunal ought to have exercised its powers legally conferred upon it by law, that is Regulation 10(2) of the Regulations. The Tribunal, it is our conclusion, deprived the parties the right to amend the pleading and had it permitted them to do so, as the respondent prayed, the disputed documents would have been produced in evidence and other parties would have been impleaded. The complaint before us about the validity of the documents in the record would therefore not arise. Our inevitable conclusion is that the error committed by the

Tribunal causatively occasioned injustice to the parties hence fatal and cannot be ignored in terms of section 45 of the Land Disputes Courts Act Cap. 216 as the learned Judge did. In view of our above finding, delving into the grounds of appeal turns out to be unnecessary. In the circumstances we invoke the powers of revision bestowed on the Court under section 4(2) the appellate Jurisdiction Act, Cap. 141 and nullify the proceedings of the Tribunal denying the parties, the 1st appellant herein in particular, the right to amend the pleadings on 30/01/2019 onwards and both the Tribunal and High Court decisions. In terms of Rule 38 of the Rules, we remit the record of the Tribunal and we direct that it should proceed with the hearing of the application afresh as ordered by the Judge on the pleadings already filed but the parties should, 14 with leave of the Tribunal, be allowed to amend their respective pleadings and produce documents at any time each one deems necessary. Each party shall bear its own costs. DATED at DAR ES SALAAM this 30th day of January, 2025. S. A. LILA

JUSTICE OF APPEAL P. S. FIKIRINI

JUSTICE OF APPEAL P. M. KENTE

JUSTICE OF APPEAL The Judgment delivered this 31st day of January, 2025 in the presence of the appellant and the respondents in person via video conference from High Court of Tanzania at Tabora is hereby certified as a true copy of the original.