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IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 45 OF 2023 (Arising from Judgment of Mbeya District Land and Housing Tribunal at Mbeya Application No. 262 of 2020 before hon A. Mapunda Chairperson). HERMAN JOHN MPEMBWA (Administrator of the Estate of the late John Mpembwa)…..….………………………………….………………………....APPELLANT VERSUS ERASTO MPEMBWA………………………………………………....1ST RESPONDENT FURAHA MUSA MWASHAMBWA………………………………....2ND RESPONDENT FRANK CHRISTOPHER DEO……………………………………….3RD RESPONDENT JUDGMENT Date: 23 May 2024 and 30 July 2024 SINDA, J. The appellant sued the respondents at the District Land and Housing Tribunal for Mbeya at Mbeya (the DLHT) claiming to be the lawfully owner of 47.31 hectares, bordering Elia Chilolela on Eastern side, River on western side, January Mwanijembe on the southern side and Laitoni Bilauli on the Northern side respectively (the Disputed Land). In his application 1 at the DLHT he alleged that that the first respondent in his personal capacity portioned and allocated the Disputed Land to the second and third respondents. The respondents on their side claimed that the Disputed Land previous belonged to the first respondent but later on was handled over to the second respondent through consent judgment entered between them. However, during hearing, the second respondent stated that he came into possession of the Disputed Land through clearing of virgin land/forest. At the end of hearing the DLHT find that the Disputed Land belongs the second respondent. Aggrieved with the decision, the appellant filed the memorandum of appeal with four grounds of appeal as follows: 1. The trial chairperson erred in law as he failed to evaluate the evidence of the parties and their witnesses hence reached into erroneous decision. 2. That, the trial chairperson deciding the matter contrary to the principle that parties are bound by their pleadings. 3. That, the trial tribunal erred in law by deciding the matter base on the certificate of title which contradicts the law governing the allocation of village land to the individual. 2 4. That, the trial tribunal erred in law and facts by relying on contradictory evidence of respondent to decide the same. At the hearing the appellant was represented by Advocate Felix Kapinga, the second respondent appeared in personal and the appeal proceeded ex-pertee against the first and third respondents. The appeal was argued orally. The appellant counsel prayed to withdraw the fourth ground of appeal. On the first ground of appeal, he submitted that the DLHT Chairman did not evaluate the evidence hence reached into a wrong decision. He referred to the case of Stanslaus Rugaba Kasusura & Attorney General vs Palesi Kabuye TLR 1982 at page 338 where the court stated that the trial judge should have evaluated the evidence of each of the witnesses, assessed their credibility and make a finding on the contested facts in issue. He stated that in the present case the DLHT chairman summarized the evidence without evaluating the evidence of each witness. He evaluated the evidence of one side as is seen on the last paragraph at page six (6) of the judgement. He argued this court as the first appellate court to evaluate the evidence of both sides and reach its decision. 3 On the second ground of appeal, Mr. Kapinga argued that the DLHT chairman didn’t consider the principle that parties are bound by their own pleadings. He referred to paragraph two (2) of the written statement of defense. It is stated that the first respondent handed over the land to the second respondent after institution of the case but on page twenty nine (29) of the proceedings there is a new story that the second respondent cleared virgin land/forest contrary to their facts stated in the written statement of defence. He referred to the cases of Maria Amandus Kavishe vs Norah Waziri Mzeru & Majembe Auction Mart Civil Appeal No. 365 of 2019 CAT at DSM at page 16 and the case of Yara Tanzania Limited vs Ikuwo General Enterprises Limited, Civil Appeal No 309 of 2019, CATat DSM to support his arguments. On the third ground of appeal, Mr. Kapinga submitted that the DLHT was wrong to consider a title which is against distribution of village land as provided under Village land is governed by section 8 (5) of the Village Land Act (VLA). He stated that the Regulation 76 of the Village Land Regulations 2001 GN 86 states that the village has authority to grant land not exceeding 50 acres. He referred to the case of Nyange Baltazari vs Peter Fumbuka Magashi and Elias Sime Land Appeal No. 14 of 2021 4 to support his argument that the certificate of title was issued contrary to the law. He further stated that the point raised by the respondent that the appeal is out of time was misconceives, the appeal filed within time as provided under section 41(2) of the Land Disputes Court Act R.E 2019 (LDCA) which stated that the appeal must be within 45 days after receiving the judgement. Under the law of Limitation Act (LLA) section 19 (2) states that the time waiting copies of judgment be excluded. The time start to run the day party received copy of judgment. In this case judgment was certified on 10 March 2023. From 10 March 2023 to 20 April 2023 there were 42 days. He finds that the appeal was filed within time and prayed appeal to be allowed with cost. In reply the second respondent submitted that he got the Disputed Land through the village authority in 1996 and in 2012 he got the certificate of title to the Disputed Land. He said that first respondent was not administrator of the estate. He finds that the Trial Tribunal decision was correct. The appellant counsel on rejoinder insisted the appeal to be allowed. 5 I have gone through court records, grounds of appeal and submission made by parties. I wish to begin with legal issue raised by respondent on reply of petition of appeal that the appeal is time bared. Section 41 of LDCA require the appeal to be lodged within 45 days from the date of decision and section 19 (2) of LLA stated that the time a party was waiting for a copy of judgment be excluded. The DLHT judgment was certified and ready for collection on 10 March 2023 and petition of appeal was filed on 20 April 2023, as corrected argued by appellant counsel this appeal was filed within time of 45 days as law required. Now coming to the appeal at hand, I find the appeal can be disposed under one issue of Whether the evidence at the trial tribunal was properly analyzed and the appellant was proved his case to the required standard It is a trite position of law that, in civil cases, the burden of proof lies on the person who alleges anything in his or her favor. This was provided under sections 110 (1), (2) and 111 of the Evidence Act [Cap 6 R.E 2022]. It is also a settled position of law in cases of civil nature that the standard of proof is on a balance of probabilities. The court will sustain evidence 6 which is more credible than the other on a particular fact to be proved. These was stated in the case of Anthony Masanga v. Penina Mama Ngesi & Another, Civil Appeal No. 118 of 2014 and Hamza Byarushengo v. Fulgencia Manya & 4 Others, Civil Appeal No. 33 of 2017 Now discussing the above issue in order to arrive into conclusion of whether the evidence was properly analyzed and the case was proved by the appellant to the required standard, this court being the first appellate court I wish to analyze and evaluate the evidence on record a fresh. The appellant at DLHT filed this case claiming that the Disputed Land belonged to the deceased. He stated that the deceased got that land from his father. To prove his case the appellant called two witnesses who bordered the Disputed Land including PW2 who stated that the Disputed Land bordered with the land of his father which was used by him (PW2). He stated that since he was born in 1960, he found the deceased using the Disputed Land. The evidence was also corroborated with the evidence of PW3 who stated that he knows the Disputed Land since he was born there and the Disputed Land was used by the deceased. The respondents on their part also stated on how they came to own the Disputed Land. DW1 said that he had a case with the second respondent 7 at the High Court. The second respondent won the case and the first respondent handed over the Disputed Land to the second respondent. Therefore, the Disputed Land belonged to the first respondent. During cross examination the first respondent stated that the Disputed Land belonged to the deceased. That, the second respondent in 2018 instituted a case against the first respondent on his personal capacity and not in the capacity of the administrator of the estate of the deceased. DW2 stated that he came into possession of the Disputed Land by clearing virgin land/forest at the same time he stated that he had a case with the first respondent and to settle the matter the first respondent handed the Disputed Land to him. I find that from the respondent’s testimonies, the second respondent came into possession of the Disputed Land into two ways. Firstly, he was handed the Disputed Land from the first respondent through the case between them, secondly, by clearing of virgin land/clearing of forest. In the case of Halima Wakara & 2 Others vs Jeremiah M. Mkama, Civil Appeal No. 493 of 2020, CAT at Mwanza the court stated that “…. ownership over a land cannot be claimed to have been acquired simultaneously through a transfer (sale) and adverse possession.” 8 See: The Hon. Attorney General v. Mwahezi Mohamed (As administrator of the Estate of the late Dolly Maria Enstance) and three others, Civil Appeal No. 391 of 2019 [2020] TZCA 27 [26th February 2020; TanzLII] In the line of the above case, it is my opinion that the act of the second respondent claiming he came into possession of the Disputed Land by being given by the first respondent and also by clearing of clearing of virgin land was not correct because the Disputed Land was the same. Also, this shakes the credibility of these witnesses on how the second respondent came into possession of the Disputed Land. In this case also the respondents on their WSD stated that the land was previous lawfully owned by first respondent and now was lawfully owned by second respondent through their consent judgment entered on 7 August 2019 on land case 309 of 2018. This was stated in paragraph two (2) of their WSD. Surprisingly during hearing the second respondent added new story that he came into possession of land in dispute by clearing of virgin land/forest. It is a settled position of law that parties are bound by their pleadings, this was stated in the case of in the case of David Sironga v. Francis 9 Arap Muge & 2 Others [2014] Eklr, in which the Court of Appeal of Kenya which emphasized that: "It is well established in our jurisdiction that the court will not grant a remedy, which has not been applied for, and that it will not determine issues, which the parties have not pleaded. In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to formulate its own case in its own way. And it is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. That way, none of the parties is taken by surprise at the trial as each knows the other's case is as pleaded. The purpose of the rules of pleading is also to ensure that parties define succinctly the issues so as to guide the testimony required on either side with a view to expedite the litigation through diminution of delay and expense." Also, in the case of Makori Wassaga v. Joshua Mwaikambo & Another [1987] T.L.R 88, the Court stated that: "A party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case.” In this case at hand the evidence adduced by respondents during hearing did not support what they have stated on their pleading. The fact that the 10 second respondent came into possession of the Disputed Land by clearing of virgin land was not stated in their pleadings. Also, the fact that the Dispute Land was lawfully owned by the first respondent before the consent judgment where the first respondent handed over the Disputed Land to the second respondent was not supported by the first respondent evidence as reflected at page 28 of the typed proceedings of the DLHT. The first respondent during cross examination stated that the Disputed Land was owned by the deceased (John Mpembwa) and in the year 2018 the second respondent sued the first respondent personally and not in the capacity of the administrator of the estate of the late John Mpembwa. In that regard I find that it was not correct for the first respondent to take the Disputed Land which belonged to the deceased and handed it over to the second respondent to finalize their case. It is a position of law that a person with heavier evidence than his/her adversary must win the case. This stance of the law was stated in the case of Hemedi Saidi v. Mohamedi Mbilu [1984] TLR 113 thus: "… the person whose evidence is heavier than that of the other is the one who must win." In this case I find that appellant evidence is heavier than that of the respondents. He managed to prove that the Disputed Land belong to 11 deceased and his evidence was credible than the evidence of respondent side. I find that the Disputed Land belongs to the appellant. The appeal is allowed with costs. DATED at MBEYA on this 30 day of July 2024. A. A. SINDA JUDGE 12