Land Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 25625 OF 2024 (originating from decision in Application No. 93 of 2018 delivered on lCfh September, 2024 before Hon. J. Silas and certified copy obtained on 3rd October, 2024) HADIJA BAKARI (as administratix of the estate of BAKARI RAMADHANI)..............................................................APPELLANT VERSUS ZAINAB ABDALLAH (as administratix of the estate of ZAINAB MOHAMED MALOGO).............................................. RESPONDENT JUDGMENT 11/11/2024& 06/12/2024 N.E. MAN DI A, J The appellant, Hadija Bakari, as the administratix of the estate of Bakari Ramadhani, appeals against the decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamala delivered on 10th September, 2024, which had declared Zainab Mohamed Malogo as the lawful owner of the suit property and dismissed the appellant's application with costs. Brief background of this appeal as obtained from the records is that: the appellant initially filed Application No. 93 of 2018 against Zainab Mohamed Malogo (her grandmother and mother of the deceased Bakari i Ramadhani) claiming that the suit properties located at Tegeta kwa Ndevu in Kinondoni Municipality-Dar es Salaam belonged to her father and thus falls under his estate. That her father obtained the disputed properties through Operation Vijiji of 1974. However, Zainab Mohamed Malogo, never survived the proceedings to its finality as she succumbed to death in 2020 and her estate is now under her grandchild Zainab Abdallah, the respondent in this appeal. Zainab Mohamed Malogo, now deceased, claimed that one of the suit property came into her possession as a gift from her late son-in-law, one Said Abdallah Shaweji who died on 15th December, 1988. That formally, the suit property gifted to her was in mud form but later she built a modern one with brick blocks and chain of frames at the front part along Bagamoyo Road. That in late 1980's, through "Sensa ya Makazi", the suit properties were allocated identification numbers in the presence of Bakari Ramadhani who was then a ten cell leader and that she had been paying land rents since then. After hearing Application No. 93 of 2018, the Tribunal pronounced the respondent as the lawful owner of the disputed properties. The appellant being aggrieved appealed to this court on the following grounds: - 2 1. That the Honourable Tribunal erred in law and fact in failing to consider material contradictions and inconsistences between pleadings and defence evidence of the Respondent, hence prejudicing the Appellant. 2. That further to (1) above, the Tribunal erred in law and fact in acting in violation of the principle of law under Order VI rules 7, Id and 18 of Cap 33 R.E 2022 generally that parties are bound by their pleadings as held, stressed and affirmed in Yara Tanzania Ltd v Ikuwo General Enterprises Ltd Civil Appeal No. 209 of 2019 CA T at page 10,13 and 14. 3. That the Honourable Tribunal erred in law and fact in taking out of context, distorting, misconceiving, misinterpreting as well as failing to properly consider prosecution evidence, hence reaching a wrong conclusion prejudicing the appellant. 4. That the Honourable Tribunal erred in law and fact as it wrongly and unjustifiably considered irrelevant and un pleaded evidential documents as well as cooked testimony of the Respondent witnesses, hence generally failing in its analysis of evidence. 5. That the Honourable Chairman erred in law and in fact by failure to consider Appellant's witnesses' testimony and Appellant's Arguments and by not adequately address or consider the appellant's arguments in the final submissions leading to an unfair conclusion favoring the Respondent. 6. That the Honourable Tribunal erred in law and fact in acting contrary to the law. This appeal was disposed by way of written submission. The appellant was represented by Mr. Amin Mohamed Mshana, learned counsel 3 whereas the respondent enjoyed the legal services of Mr. Goodchance Lyimo, learned counsel. In support of the first and second ground of appeal, Mr. Mshana submitted that there is a significant discrepancy in the testimonies of DW1 and DW2 concerning the origin of ownership of the disputed properties consisting of two houses situated at Tegeta kwa Ndevu, Kinondoni, Dar es Salaam. That DW1 asserted that Zainab Mohamed Malogo received one property from her son-in-law, Saidi Abdallah Shaweji in 1974 whereas DW2 claimed that Zainab Mohamed Malogo independently acquired both properties on her own initiative without assistance from Saidi Abdallah Shaweji since 1974. Mr. Mshana contended that the evidence of DW2 was to the effect that Zainab Mohamed Malogo had her own farms and houses at Tegeta kwa Ndevu overlooking Bagamoyo Road. That upon being asked on the origin of alleged ownership DW2 responded that Zainab acquired the suit properties through allocation by village authorities under operesheni vijiji. The counsel was of the view that the contradiction was material and critical as it goes to the root of ownership of the disputed properties. He cited the case of Martin Jacob @ Mlila v R, Criminal Appeal No. 434 of 2021 to bolster the argument that credibility of a witness 4 can be determined by the appellate court when assessing the coherent and consistence of the witness. Mr. Mshana contended further that this being the first appeal, this court has the power to revisit and evaluate evidence and come to its own conclusion. He cited the case of Idrissa Ramadhani Mbondera vs. Allan Mbaruku and Another (Civil Appeal 176 of 2020) [2023] TZCA 204 (27 April 2023) to bolster his argument. He also cited the case of Mohamed Said Matula vs., R, (1995) TLR 3 in which the Court of Appeal highlighted that if there are material contradictions which go to the core of the matter in dispute, it influences the credibility of witnesses and affects the outcome of the case. That the appellant's claim ought to have been upheld based on the balance of probabilities, pursuant to section 110 of the Law of Evidence Act, [Cap 6, R.E. 2022]. On the third ground of appeal, Mr. Mshana submitted that the Tribunal's analysis appears to have misinterpreted the statements of key witnesses, particularly those who provided, direct information about ownership and possession of the disputed properties. That the testimony of PW2 that Bakari Ramadhani was the original owner of the properties in question and was in fact part of the persons allocating village land clearly 5 pointed to Bakari's substantial role in constructing and maintaining these properties. That this evidence supports the appellant's claim of ownership but was not accorded due weight by the Tribunal. Mr. Mshana submitted further that the testimony of the wife of the deceased Asia Sultani Athumani who took part in the construction, Magogo Nassoro Athumani, a near relative, and Saidi Bakari Ramadhani, substantiated that the properties were built and managed by Bakari Ramadhani. That the Tribunal did not give due consideration to this evidence.- On the fourth ground, Mr. Mshana contended that the Tribunal erred both in law and in fact by unjustifiably considering irrelevant and un­ pleaded evidential documents as well as fabricated or unreliable testimony presented by the respondent's witnesses. That the evidence on 'Sensa ya Makazi' had not been proved. That those documents were brought in a list of documents more than 3 years after completion of pleadings and even worse were not pleaded. He cited the case of Yara Tanzania Ltd vs. Ikuwo General Enterprises Ltd, Civil Appeal No. 209 of 2019 to bolster his argument that a list of documents is not part of pleadings. Mr. Mshana also cited the case of Yara Tanzania Limited vs. Charles Aloyce Msemwa t/a Msemwa Junior Agrovet & 2 Others, Commercial Case 6 No. 5 of 2013 to substantiate the argument that parties are bound by their pleadings. He submitted that in this instance, the Tribunal exceeded its mandate by entertaining extraneous materials that not only deviated from the respondent's case but also unfairly influenced its decision-making process. The counsel cited the case of Multichoice (T) Ltd vs. Alphonce Felix Simbu & Others, Commercial Appeal No. 01 of 2023, where the CAT reiterated that evidence not directly linked to the claims should not factor into judgment. He was of the view that the Tribunal's decision should be set aside, and a judgment be entered in favor of the appellant. On the six ground of appeal, Mr. Mshana submitted that the Tribunal misinterpreted the applicable legal principles and factual findings pertinent to this case, resulting in a decision contrary to the law. That the Tribunal's ruling and judgment, contravened the established legal framework that governs the subject matter, thereby undermining the legal safeguards intended to protect the appellant's rights and interests. Mr. Mshana submitted further that the Tribunal failed to apply or consider the relevant statutes and precedents applicable to this case and as a result, the decision failed to uphold the principles of justice and equity. 7 Rebutting the first and second ground of appeal, Mr. Lyimo submitted that the cited numerous judicial pronouncements and statutory enactments are not amenable to the present suit that, no material inconsistences and contradictions had prevailed during the trial as the evidences and testimonies by the respondent and her witnesses aligned and were coherent to each other about originality of the suit properties as evidenced at pages 10, 11, 12 and 13 of the impugned decision and that, the deceased for all those years (almost 30 years) had been paying land rents and other fees in support of her ownership as per Exhibit D3 and D4. Mr. Lyimo submitted further that it was testified by the respondent and her witnesses that one plot of the disputed properties was allocated to Zainab and another one was given as a gift by her son-in law. That the suit houses were numbered in late 1980s when the deceased Bakari Ramadhani was still alive as testified by DW3 who happened to be a chairman of that respective village of Tegeta for 21 years (1987-2009) and a neighbor to the respondent. Mr. Lyimo cited the case of Mbumbumbu Ngwale vs. Ali Said Kidowe, Civil Appeal No. 12/1992 (unreported) where it was stated that: - 8 "in case involving trivial claims of shamba it is advisable to hear evidence of those who own adjacent pieces of land since they are the people best placed to see over the years who their neighbor is". Mr. Lyimo contended that the respondent's testimonies and evidences were coherent to each other and the allegations by the appellant are misplaced. He referred in the case of Goodluck Kyando v. Republic, [2006] TLR 367 where it was held that: - "It is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness." Mr. Lyimo contended further that, notwithstanding insubstantial assertions, the appellant should not take those allegedly contradictions and inconsistences as escape goat by shifting the onus of proof to the respondent. He contended that in civil cases, the burden of proof lies on the person who alleges as per sections 110(1), (2) and 111 of the Evidence Act(supra). That, the instant appeal being of a civil nature, the standard of proof was on a balance of probabilities. He cited the case of Anthony Masanga vs. Penina Mama Ngesi & Another, Civil Appeal No. 118 of 2014 and Hamza Byarushengo v. Fulgencia Manya & 4 Others, Civil Appeal No. 33 of 2017, reported in TanzLII to bolster the argument that 9 the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his, and is not diluted on account of the weakness of the opposite party's case. He cited the case of Paulina Samson Ndawavya vs. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017, reported in TanzLII. Also quoted an extract in Sarkar's Laws of Evidence, 18th Edition cited in Paulina Samson Ndawavya's case(supra) to bolster the argument that the burden of proving a fact rest on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. In response to ground three of the appeal, Mr. Lyimo submitted that this ground should not detain the minds of this court as the decision subject of this appeal was safely anchored and due weight of evidence of both parties were accorded and considered. He referred to page 15, paragraph 2 of the impugned decision. That the suit properties belonged to the respondent since 1974 and registered in late 1980s under the leadership of the deceased Bakari Ramadhani himself as a ten cell leader and that, his properties were located at different place. That this position is gathered from unchallenged exhibits D3, D4 and D5 and the testimonies of DW2 and DW3. _ io On the fourth ground of appeal, Mr. Lyimo submitted that the appellant has made blanket claims and awaits this court to take prophetic move and make a lead to itself which area in the said decision was contravened warranting intervention. That the Tribunal being a quasi­ judicial body, is not strictly bounds by the rule of evidence and civil procedures, parties are allowed under regulation 10 of GN 174 of 2003 to bring additional documents otherwise not pleaded or attached subject to regulation 10 (3) of the said GN. He cited the case of Erasto Ngailo vs. Blastus Allen Mgimwa, Misc Land Application No: 15/2022, reported in TanzLII to bolster his contention. That, the appellant had an opportunity to object additional documents during trial but instead she slept over her right. He cited the case of Habiba Ahmadi Nangulukuta and 2 Others vs. Hassani Ausi and Another, Land Appeal No. 7 of 2018, reported in TanzLII where it was held that: - "Once you sleep over your right, you may sleep forever and this court cannot do otherwise but to follow the letters of the law." Mr. Lyimo was of the view that raising this issue in appeal is an afterthought which this court is implored to disregard. He cited the case of Buckie v. Hoimer (1926) ALL ER Rep. 90 at page 91. The counsel responded on the allegation of cooked testimony that, there was no account of the complaint given by the appellant at the hearing and this court would not be placed in better position to be taken through the evidence on the record to contravene the allegation. That the onus of proof lied on the appellant and she failed to discharge it. On the fifth ground of appeal, Mr. Lyimo contended that the ground had no merit. That, records of the court are sacrosanct of what had transpired during the trial. That it is undisputed fact that the Tribunal considered and analyzed appellant's testimony as evidenced at pages 2 to 10 and the analysis made at page 15, second paragraph which found that the appellant houses are located at different place. He contended that final submissions are not evidence to be relied upon. Mr. Lyimo cited the case of Luhumbo Investment Ltd vs. National Bank of Commerce Ltd and 2 Others, Civil Appeal No: 503/2020, reported in TanzLII to bolster his argument. On the sixth ground of appeal, Mr. Lyimo submitted that the ground has no merit for being grounded on blanket claims as no indications were ever cited by the appellant that were contravened by the Tribunal to implore this court to dive in and make its findings. He referred to the Holy Bible, the book of Isaiah 41:21 KJV that "produce your cause, saith 12 the Lord; bring forth your strong reasons, saith the King of Jacob." That no specific inputs were submitted by the appellant in this ground hence, it is very un-safe to intervene and make the findings. Mr. Lyimo concluded that the impugned decision was arrived in accordance with the law as the respondent's evidences was heavier than that of the appellant. He cited the case of Hemed Said vs. Mohamed Mbilu [1984] TLR 113 where it was held that: - "According to the law both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win". Mr. Lyimo also cited the case of Halfani Sudi vs. Abieza Chichili [1998] TLR 527 to underscore the importance of the court not to lightly impeach its records. The counsel implored the court to dismiss the appeal with costs for want of substance. The applicant was supposed to file her rejoinder submission on or before 2nd December, 2024 but the same was files on 3rd December, 2024 out of the court order hence, the same was not considered because it was as good as nothing. After going careful through the rival submission of the parties and the records of the appeal, the pertinent issue for determination is whether the appeal is meritorious. Having looked on the grounds of appeal, I find it reasonable to combine and argue together grounds one to five as, in my view, the are related and they are based on the issue of evaluation of evidences. In a nutshell, in ground one to five, the appellant is alleging that the impugned decision is tainted with material contradictions and inconsistences between pleadings and defence evidence; that parties are bound by their pleadings; that the tribunal misconceived and misinterpreted the evidence; the tribunal considered irrelevant and un pleaded evidence; and that the tribunal failed to consider appellant witnesses' testimony. It is clear from these allegations that the appellant was not happy with the way the testimonies and evidences were dealt and treated by the trial tribunal. Coming to the substance of the appeal, it is on record that the epitome of the dispute lies on ownership of houses located at Tegeta kwa Ndevu in which the appellant is the administratix of the estate of his late father Bakari Ramadhani. She claimed that the suit property belonged to his late father who obtained the same during operation vijiji. On the contrary, the respondent who is the administratix of the estate of the late 14 Zainab Mohamed Malogo, claimed that the suit properties belonged to Zainab Mohamed Malogo who obtained the same during operation vijiji as she was allocated by Ujamaa Village and later on he was given another plot as gift by her son-in-law, one Said Abdallah Shaweji who is deceased. The respondent had attached the land rent receipts, residential license and other documents showing the change of residential numbers, all appearing in the name of Zainab Bakari Malogo as a proof of ownership. Having gone through these records, it is my considered view and trite law that the one who alleges must prove as provided for under section 110(1), (2) and 111 of the Law of Evidence Act (supra). It is also my considered position as rightly submitted by the counsel for the respondent and emphasized in the case of Hemed Said vs. Mohamed Mbillu (supra) that the one who have heavier evidence than the other must win The fact on record revealed that Hadija Mohamed Malogo obtained the suit land during operation vijiji and later on he was given the 2nd plot by her son-in-law. This fact in my view has not been contradicted by the testimonies given by the witnesses and evidences tendered by the appellant. The Tribunal, in my view was right to hold that the suit property belonged to Hadija Mohamed Bakari as the evidence revealed that she 15 owned the suit properties since 1974 and the same was registered in 1980s under her name as supported by Exhibit D3, D4, and D5 during trial. The appellant did not produce any documentary evidence to support his allegation. It is trite law that in civil cases the burden of proof never shifts to the adverse party until the party whom onus lies discharged his duty to prove his case. It is the appellant, in the instant appeal who owes a duty to prove his case, which in my view he failed to do so. It is on record and as testified by DW3 who was the Chairman of Tegeta Village since 1987 to 2009 that during "Sensa ya Makazi" of 1988, when the deceased Bakari Ramadhani was a ten cell leader, and who was the son of the deceased Zainab Mohamed Malogo, the suit properties were registered in the name of Zainab as her properties and that after the registration Zainab was supposed to pay house rent, which she paid. This piece of testimony was never contradicted by the appellant side. It is also on record that even the receipt for payment of compensation from the government were recorded in the name of Zainab. It is surprising at this point to hold otherwise while the appellant father, Bakari Ramadhani was alive when registration of the suit properties was effected in the name of Zainab Mohamed Malogo and he never disputed that the properties belonged to him. 16 After going through the records, I did not find any material contradictions and or inconsistences between pleadings and defence evidence. The trial tribunal, in my view has analyzed the testimony and evidence adduced accordingly. I find comfort in the holding of Goodluck Kyando v. Republic case (supra) that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness. In the instant appeal I do not see the reason of not believing the testimonies and evidences produced and or tendered before the trial tribunal by all the witnesses. It is my considered observation that the appellant case was built on the sands instead of stones, and it was not heavier hence, was easily swept away. Coming to ground six of the appeal that Tribunal erred in law and fact in acting contrary to the law, I do not find any substance on this allegation as the said misinterpretation of the applicable legal principles have not been clearly demonstrated. I find it very un-safe to intervene and make any finding because no specific inputs were alleged by the appellant in this ground. I therefore hesitate to comment anything on this ground. 17 In the upshot, and without prejudice to my observation, I see no need of departing from the trial tribunal decision as the respondent evidence was heavier than that of the appellant, hence she was supposed and she did win. Therefore, I hereby up hold the tribunal decision in Application No.93 of 2018. The Appeal is hereby dismissed with costs. N.E MANDIA JUDGE 06/12/2024 18