CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA

AT MUSOMA (CORAM: LILA, J.A.. KENTE. J.A. And MGONYA. J.A.^ CIVIL APPEAL NO. 576 OF 2022 JOHN BUNINI........................................................ APPELLANT

VERSUS CHARLES M. MBUSIRO........................................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Musoma) (Kisfrnyji, J.) Dated the 14th day of September, 2021 in Land Appeal No. 06 of 2021

JUDGMENT OF THE COURT 17th July, 2024 & 11th April, 2025 KENTE, J.A.: The appellant John Bunini has come on appeal to challenge the judgment and decree of the High Court (sitting at Musoma) dated 14th September, 2021, that was in favour of the respondent Charles Mbusiro. It was held in the said judgement, by the learned High Court Judge (Kisanya, J) that the appellant had failed to prove, on a balance of probabilities that he was the lawful owner of the disputed piece of land the particulars of which we shall endeavour to give in the course of this judgement. i A brief background of this case is that, initially, the appellant lodged an application (Application No. 130 of 2018) in the District Land and Housing Tribunal for Tarime seeking to be declared the lawful owner of a piece of land located at Kemambo village within Tarime District in Mara Region. In support of his claim, the appellant contended through his testimony that, his father was allocated the said piece of land measuring 16 acres by the Local Authority way back in 1963. He further claimed that, in 1974, the respondent's father requested to use the said piece of land for agricultural activities, particularly for growing cassava, as at that time, there was a good relationship between his father and the respondent's father both of whom are now deceased. According to the appellant, his father gave part of the disputed

land to the respondent's father. It is the said piece of land (measuring 250 x 260 paces) the ownership of which is now in dispute between the parties herein. In 1981, the appellant's father passed on. According to the appellant, before his passing, he had bequeathed and thereby transferred ownership of the disputed land to him. Given the change of ownership, the appellant further claimed that, the respondent's father had to seek and obtain a permit from him to continue using the disputed land. In 2000, the appellant who at the time, was a civil servant, was transferred from Tarime to another working station. Taking advantage of his absence, the respondent allegedly went behind his back and started planting and tending permanent crops such as sisal on the disputed land. Upon learning of the respondent's acts of trespass, the appellant complained to the Village Council in 2008. Following the said complaint, the respondent was ordered to vacate the suit land. However, the appellant further alleged that, the respondent did not abide by the order requiring him to vacate the suit property. The appellant contended further that, aggrieved by the respondents unjustified disobedience, he referred his grievances to the Ward Tribunal seeking to evict him in 2016. The Ward Tribunal's decision was delivered in 2017 but in favour of the respondent. Dissatisfied, the appellant appealed to the

District Land and Housing Tribunal which nullified the proceedings, quashed and set aside the Ward Tribunal's decision for lack of jurisdiction. Still aggrieved and desirous of pursuing his rights, the appellant lodged another application in the DLHT (Application No. 130 of 2018). Initially, the said application which was based on the same facts was dismissed for want of prosecution. Not subdued, the appellant then made an application to the DLHT to have the dismissal order vacated and the application restored. His application was granted and the application restored after which it proceeded to hearing. For his part, the respondent pleaced and testified that, the suit land was allocated to his deceased father by the Village Council in 1974 during the policy of Operation Vijiji. He stated that, until the occurrence of this dispute, he had used the suit property undisturbed for more than twelve years. He further testified that, at one time, he gave the disputed land to the appellant's son in law (one Mrimi) who went on putting up a crusher and a house without his permission. His evidence was corroborated by the testimonies of three witnesses whose evidence in totality, was to the effect that, the respondent's father owned the suit land since 1974 after he was allocated the said land by the Village Council. After hearing the two contending sides, the trial Tribunal decided

in favour of the appellant. Dissatisfied with the decision of the DLHT, the respondent escalated the matter to the High Court of Tanzania sitting at Musoma (Land appeal No. 6 of 2021). His appeal was allowed by the High Court which went on quashing and setting aside the judgment and decree of the trial DLHT. Particularly after hearing the parties, the learned High Court Judge took the view that, going by the evidence on the record, the appellant had fallen far short of proving that the disputed piece of land belonged to him as earlier on pleaded in his statement of claim. He accordingly allowed the appeal quashed the decision of the trial Tribunal and ruled in the respondent's favour. In particular, having reflected and agonised long and hard over the appellants pleadings and the evidence led in support of his claim, the learned High Court Judge came to the conclusion, correctly so in our view that, the appellant and his witnesses had adduced evidence which was contrary to his own pleadings. It would be worthwhile here to refer to the observation made by the learned High Court Judge which appears on page 137 of the record of appeal where he remarked that: "... the respondent (the present appellant) cannot be permitted to adduce the fact constituting the claim that are contrary to his pleadings. I therefore hold that he was bound to prove how the disputed land was allocated to

him by the Village Government in 1963 and how the respondent's father leased the disputed land from him as pleaded in the pleadings. Otherwise, the respondent was required to seek to amend the pleadings before adducing evidence which was contrary to what had been pleaded." Having observed as extracted supra, the High Court Judge went on holding that, the above ground was sufficient to dispose the matter before him. As stated earlier, he went on allowing the appeal and quashing and setting aside the judgment and decree of the Trial Tribunal. Disenchanted with the decision of the first appellate court, the appellant has appealed to this Court citing two grounds of appeal which basically, boil down to faulting the learned High Court Judge for quashing and setting aside the decision of the DLHT without giving directives on the way forward and for allegedly basing his judgment on the evidence and pleadings of the appellant without evaluating the evidence of both parties and resolving the issues in controversy. But then, during the hearing of the appeal, Mr. Daud Mahemba, learned Advocate who appeared for the appellant, apparently having found the decision by the first appellate court almost unassailable, he sought to attack it from a different angle. While not disputing the fact that the appellant's evidence in the DLHT was at variance with his specific claims in the pleadings, Mr.

Mahemba contended that the decision by the first appellate court did not give direction on the course to be taken by the parties after allowing the appeal and quashing the decision of the DLHT which had adjudged the appellant the owner of the disputed land. The learned Advocate contended erroneously so in our view that, the High Court Judge had left the decision by the DLHT together with the pleadings and proceedings intact thereby leaving it unresolved as to who between the appellant and respondent would be the owner of the disputed land. According to Mr. Mahemba, the learned High Court Judge ought to have categorically ordered the matter to be remitted to the Trial Tribunal for the parties to be heard afresh. With regard to the holding by the learned High Court Judge that the appellant had not led evidence showing that he was himself allocated the disputed piece of land or any part thereof by the Local Authority in 1963 as alleged in his pleadings, Mr. Mahemba submitted in kind contending that, there were many shortcomings in the appellant's pleadings including the failure to specify the size of the disputed piece of land and the place where it is situated. According to Mr. Mahemba, the High Court Judge fell into grave error when he veered off the above shortcomings in the appellant's pleadings and found that the appellant had failed to prove his claim to the required legal

threshold. In reply, the respondent was understandably very brief. Expressing his feelings as succinctly as possible, he contended that, the decision by the first appellate court was precise and lucid enough as to require no interpolations. He therefore urged us to sustain it and accordingly dismiss the appeal for want of merit. We have considered the arguments by the parties and the judgment being impugned. We think with respect that the primary issue before us, as it was before the lower court turned on the competing legal interests in the disputed piece of land. Whereas one was the appellant's claim which as per his pleadings, showed that he was allocated the said piece of land, by the Local Authority way back in 1963, the other was in respect of the respondent's claim showing that he was allocated the disputed land in 1974 during the policy of Operation Vijiji. In these circumstances, the essence of the suit was and still is to determine which of the two competing claim should prevail. As stated earlier, the learned High Court held that the appellant had failed to lead evidence showing that, he was himself allocated the disputed land in 1963. In so holding, the learned High Court Judge was mindful that in civil litigation, parties are bound by their own pleadings and that, in view of the above principle, the appellant could not be heard to introduce new evidence contrary to

what he had specifically stated in his statement of claim. On our part, we must state in the first place that, we were taken aback by Mr. Mahemba's disturbing and ill-founded contention that, upon appeal by the respondent to the High Court, the decision of the DLHT was left intact. For one thing, the learned High Court Judge was categorical when he stated at the end of his judgment thus: "For the foresaid reason, I find merit in the appeal, on the second ground in particular. This ground is sufficient to dispose of the matter. Had the learned trial Chairperson evaluated properly the evidence adduced by the respondent, he would have noted that the respondent had not proved the facts deposed in the pleadings. In the final analysis, I allow, the appeal by quashing and setting aside the judgment and decree of the trial Tribunal. The appellant shall have costs in this appeal."[Emphasis added]. Upon the above decision by the High Court Judge which is in plain and intelligible language, we find it difficult to accept Mr. Mahemba's tempestuous arguments by which in fact, the learned counsel departed from what was at issue between the parties and what was finally decided 9 by the first appellate court. Clearly, the learned Judge overturned the judgment and decree issued by the DLHT and, unless one is immersed in his or her own thought, this is visible to all and sundry and therefore, it

is misleading and erroneous to argue that, the decision of the DLHT was left intact. On this argument, we shall say no more. With regard to the variance between the appellant's pleading and the evidence led in support of his claim, there is a myriad of case law and it is indeed very elementary to observe that, in any legal proceedings, parties are generally bound by the facts and claims they present in their pleadings. This means that, in the absence of amendments, parties to a civil suit cannot present a case that contradicts or goes beyond what, they have stated in their pleadings. The rationale behind this principle is not far-tetched. It is to ensure and maintain a fair and orderly trial process by preventing the parties from changing their case in the course of trial and ensuring that the court focuses on the issues arising from the pleadings. Coming to the instant case, as it will be noted right away, the appellant had in his statement of claim at page 4 of the record of appeal, specifically claimed that, he was the owner of the disputed piece of land which was allocated to him by the Local Authority in 1963. He went on claiming that in 1974, he leased the said land to the respondent's father 10 and that when the respondent's father moved to another place, the said piece of land reverted to him but the respondent went on unlawfully occupying the said land thereby becoming

a trespasser. But then, during the trial, the appellant changed tack and tried a different approach to the prosecution of his case. He led evidence which shows that the disputed land was basically owned by his deceased father and that it was his father who had leased it to the respondent's father. With due respect to the appellant, this was an unauthorised departure from the facts which he had pleaded. It must be very elementary to say that, if a party attempts to present a case that departs significantly from their pleadings without seeking amendment as it happened in this case, the court may refuse to consider the new evidence or arguments and that is what the learned High Court Judge did. That being the case, we have no reason to fault him as he was firmly on the firm ground. On the totality of the foregoing observations, we find that the entire appeal has no merit and we accordingly dismiss it. For the avoidance of doubt, the decision of the first appellate court which quashed and set aside the judgment and decree of the DLHT, which was in favour of the appellant, is hereby sustained. The respondent is awarded the costs of the litigation both in this court and the courts below. DATED at DODOMA this 10th day of April, 2025. S. A. LILA

JUSTICE OF APPEAL P. M. KENTE

JUSTICE OF APPEAL L. E. MGONYA

JUSTICE OF APPEAL The Judgment delivered this 11th day of April, 2025 in the presence Mr. Daudi Mayemba, learned counsel for the appellant, and Mr. Charles M. Mbusiro, the Respondent in person, unrepresented, via Visual Link from Musoma is hereby certified as a true copy of the original. 12