LAND APPEAL NO

IN THE HIGH COURT OF TANZANIA MTWARA DISTRICT REGISTRY AT MTWARA LAND APPEAL NO.15464 OF 2024 (Originating from the District Land and Housing Tribunal for Mtwara at Mtwara in Land Application No. 38 of 2023) Josephine Andrea.......... ............ ..........................^....APPELLANT VERSUS Hasani Musa Mjoko.............................................. ............. RESPONDENT JUDGMENT Date of last Order: 13.08.2024 Date ofJudgment: 16.09.2024 Ebrahim, J. The appellant, Josephine Andrea lodged the instant appeal challenging the decision of the District Land and Housing Tribunal for Mtwara at Mtwara (the DLHT) delivered in Application No 38 of 2024 on 2nd May 2024. The Appellant raised four grounds of appeal as follows: 1. That, the Honourable Learned Chairman of the trial tribunal grossly erred in law and fact by not considering, analyze and weight the appellant's witness evidence. 2. That, the Honourable Learned Chairman of the trial tribunal grossly erred in law and fact by not considering that the suit land is the property of the appellant and her husband the deceased one Mr. Kapinga after bought the same sometime in 2008 from the said one Saidi Yusufu Atwanje. 3. That, the Honourable Learned chairman of the trial tribunal grossly erred in law and fact by not considering that the appellantshave been Page 1 of 14 in use and / or in possession of a plot of land for a period of above twelve years without being disturbed from any person. •4. That, the Honourable Learned Chairman of the trial tribunal erred in law and fact by holding in favour of the respondent, despite the fact that the Respondent failure to produce any strong evidence to prove ownership ofthe suit land. The Respondent herein instituted an application at the District Land and Housing Tribunal for Mtwara at Mtwara i.e., Land Application No. 38/2023 claiming that the Appellant herein invaded into his suit- land by uprooting the pillars planted by the Respondent to mark the boundaries. The suit land is unsurveyed piece of land situated at Mbezi area, Mpondomo Village, Dihimba Ward within Mtwara District measuring quarter of an acre with an estimated value of TZS 1,000,000/-. The Respondent claimed at the DLHT that he purchased the piece of land on 12th February 2005 from the late Saidi Yusufu Antwanje for TZS 50,000/-. The Respondent (Applicant at the DLHT) averred that at some point he apportioned a piece of his land to the Appellant's husband who was working in casual labourer to sustain him. The said person sold the land and went to live at Mozambique until he died. It was in 2019 when the Appellant is said to have uprooted the said pillars claiming that she is the lawful owner of the suit land. Page 2 of 14 In her written statement of defence, the Appellant refuted the claim by the Respondent and averred that she bought the suit land sometimes in 2008 with her deceased husband named Mr. Kapinga and at all time she has been using it uninterrupted for cultivation and she has also built a house. She thus put the Respondent into strict proof thereof. The matter was first taken to Dihimba Ward Tribunal for mediation in vain and it was escalated to DLHT and now an appeal before this court. Before this court, both parties appeared in person, unrepresented. Submitting in support of her appeal, she adopted her grounds of appeal and insisted that together with her husband they purchased the disputed land in 2008. In reply, the Respondent recanted the Appellant's argument and stated that he was the one who purchased the disputed land on 12.02.2005. He explained that the Appellant's husband was initially living at the far side of the disputed land where there were like 4 or 5 houses. When 4 families moved away, the husband of the Appellant and his family remained alone and the Appellant's husband asked him for a piece of land so that he can live nearby. The Appellant explained further that he invited him to build a temporary house and that once he gets his permanent place, he should demolish his house and leave. He said, the Appellant's husband stayed for Page 3 of 14 a while and then went to Msumbiji until he died. He thus went to claim back his piece of land from the Appellant. The Appellant claimed to have purchased the suit land for TZS. 120,000 from Said Yusuph Atwanje. He added that Said Yusuph Atwanje denied to have sold the land to the Appellant but him. He prayed for the appeal to be dismissed with costs. In brief rejoinder, the Appellant said the Respondent told her to build a proper house when she wanted to demolish a mud house. I have followed the rival submissions of the parties as well as perused through the proceedings on record. In so doing, I find that the main issue in this matter is on the ownership of the suit land. As intimated earlier, the suit land is not surveyed therefore a strong and more probable evidence to prove ownership is required from a party whose burden of proof lies in claiming ownership over the other. Therefore, in determining this appeal and being the 1st appellate court, it is the duty of this court to objectively revisit and scrutinize the entire evidence and if merited to arrive to its own conclusion of facts. This duty has been elaborated in plethora of decisions by the Court of Appeal and among them is the case of Martha Wejja vs. Attorney General and Anothis [1982] TLR 35. Page 4 of 14 At the trial both parties called four witnesses. The Respondent tendered two exhibits i.e., exhibit Pl the sale agreement of 12.02.2005 and exhibit P2 a letter from the Ward Tribunal of 08.05.2023. The Respondent, Hasani Musa Mjoko testified as SMI. He told the tribunal about how he came to invite the Appellant's husband after he had come to ask him and that when he died at Msumbiji, he went to his family to claim back his land. He testified further that the Kapinga's family (Appellant's husband family) agreed to return his land except the Appellant He exhibited to have purchased the suit land from one Saidi Ahmadi Atwanje and he tendered the Sale Agreement - exhibit Pl. Responding to cross examination questions he said he told the Appellant that he is selling the suit- land for 7ZS. 500,000/- and that the Appellant did not tell him that she had purchased the land. SM2, Yusuf Ahmadi Atwanje, was the father of one Saidi Yusufu Atwanje. He said his son died in 2023 but he evidenced his late son selling half an acre of his farm to the Respondent on 12.02.2005. By then SM2 was the Hamlet Chairman, hence witnessed the sale. SM3, Salima Hamisi Ndomondo, testified before the trial tribunal that year 2020 while she was the Hamlet Chairman of Lusaka "B", Mpondomo Village, Mr. Kambona went to seek her assistance on the estate of his late uncle(the Appellant's husband) but Page 5 of14 his wife only told him that the deceased did not leave anything save for the suit land which has been allotted to them by the Respondent (SMI). SM4 Erenest Kabatasi Livandola, (the deceased7 nephew) said he was at Dihimba when the Respondent was giving the deceased the suit land. However, when he asked the Appellant, she said she has purchased the disputed land and it is not the property of the deceased. On her side, the Appellant, Josephine Andrea testified as DW1. She testified that she purchased the suit land from Saidi Yusuf Atwanje in 2008 and started building in 2011 which was the same year when her husband moved to Msumbiji although she does not know the year that he died. She testified further that when the deceased passed on, the Respondent claimed back his land but she told him that she has purchased itforTZS. 120,000/- and she has stayed at the suit for a long time. DW2, Ibrahimu Hamisi Mkata, said he was bordering Mzee Kapinga and that they purchased the pieces of land from Saidi Yusufu Atwanje. He said the sale was witnessed by Yusufu Atwanje who was the Hamlet Chairman and Mussa Silimu the Hamlet Secretary in 2008. DW3, Rukia Hassani Namdumbi testified to have witnessed the sale of the suit land by Mzee Kapinga in 2008 from Saidi Atwanje of which he paid in cash. She said the witnesses were Mzee Atwanje and Mussa Silimu. She said she was called Page fi of 14 as a witness because she was bordering the seller. The last defence witness was Fatuma Ally Uyala (DW4). She briefly told the Tribunal that they purchased the lands in the area in 2008 from Saidi Atwanje and the sell was witnessed by Yusufu Atwanje and Mussa Silimu. Having reproduced the evidence adduced during the trial, the next step would be to address the grounds of appeal which I shall address all of them together. Before I begin, it is elementary that I point out the legal position of proving a case in a civil litigation. The principle of the law is: "he who alleges mustprove; and that a burden ofprooflies on a person who would fail if ho evidence at all were given on the other side'- -section 110(1) arid 111 of the Law of Evidence Act, Cap 6 RE 2022. It is again a cardinal principle in civil proceedings that a party with legal burden bears the evidential burden; and the standard of proof is on the balance of probabilities- ANTHONY M MASANGA VS PENINA MAMA NGESI AND ANOTHER, Civil Appeal No. 118 of 2014 (unreported). Moreover, the Court of Appeal of Tanzania expounded further on what it means by the "balance of probability" In the case of HAMZA BYARUSHENGO Vs FULGENCIA MANYA and 4 Others, Civil Appeal No. 246 of 2018 which cited with approval the case of PAULINA Page 7 of 14 SAMSON NDAWAVYA VS THERESIA THOMASI MADAHA, Civil Appeal No. 45 of 2017[20191 TZCA 453; (unreported), held thus: In a nutshell, the standard ofproofis on balance ofprobabilities simply means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved" [emphasis is mine]. In Paulina Samson Ndawavya vs. Theresia Thomasi Ma da ha's case (supra); the Court held inter-alia that: ...It is again trite that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his and that the burden ofproof is not diluted on account of the weakness of the opposite party's case, "[emphasis added] Guided by the above stated principles of the law, I shall proceed to determine if the Respondent discharged his burden of proof cognizant of the principle that he had the first primary duty of proof before the Appellant was called to disapprove the alleged facts. Learning from the evidence on record and the submissions made by the parties, the Respondent's claim that he purchased the disputed land in 2005 was substantiated by tendering the sale agreement exhibit Pl. Moreover, the testimony of SM2 which was not substantively challenged Page 8 of 14 to question its reliability and credibility supported the Respondents contention that he purchased the disputed land from the late Saidi Atwanje who was SM2's son. SM2 was by then the Hamlet Chairman and he witnessed the sale. The fact that he was the Hamlet Chairman was admitted by all Appellants witnesses. Further to that, the Respondent said he invited the Appellant's husband (the late Kapinga) to stay at his land with his family due to the fact that he was like his son and he was living far from other people. When Kapinga left and died at Msumbiji, DW1 went to claim his land. The fact that that the Respondent went to claim his land is not denied by the Appellant meaning that she was aware that her husband was welcomed into the suit land by the Respondent. Coming to the weight and evaluation of evidence; after hearing the evidence from both sides and receiving opinion of the assessors, the trial Chairman departed from the opinion of the assessors. He made a finding that the Respondent managed to establish his ownership of the disputed land by tendering a documentary evidence to prove that he purchased from one Saidi Atwanje and his evidence was supported by the testimony of PW2. Page 9 of 14 The trial Chairman made further findings that the testimony of the appellant was contradictory to what she averred in her WSD that she purchased the land with her husband and what she testified during the trial that she purchased the land on her own. The trial tribunal made another observation that the testimony of the Appellant is also inconsistent with the testimonies of her witnesses who said that the land was purchased by the Appellant's husband. The trial Chairman found the Appellant and her husband to have been invitees hence cannot claim adverse possession. I agree with the trial Chairman's findings. To begin with who purchased the suit land, the Appellant testified under oath that she was the one who purchased the suit land. However, at para 3 of her WSD she averred that she purchased the suit land in 2008 with her husband. Furthermore, all of her witnesses, much as their testimonies did not concretely prove that indeed the Appellant's husband purchased the land from one Said Atwanje, they testified that it was Appellant's husband who purchased the disputed land. Save for DW3 who said that she was present when the appellant's husband purchased the suit land, all other witnesses are pegging their testimonies and ownership of the suit land to the Appellant on the fact that they also purchased from Said Atwanje and PW2 was the Chairman and Kapinga and his family were Page 10 of 14 their neighbours. However, neither the appellant nor her witnesses could prove more than their mere assertions that they saw the Appellant purchasing the suit land and for how much or that they were witnesses to the sale agreement. As for the testimony of DW3, she said PW2 witnessed the sale but to the contrary PW2 testified that he witnessed Said Atwanje selling the disputed land to PW1. Thus, as correctly observed by the trial Chairman, in the absence of any other concrete evidence, exhibit Pl exclude other evidence explaining the alleged sale to the Appellant in this case - Section 100(1) of the Law Of Evidence Act, CAP 6 RE 2022 i.e., no evidence shall be given in proof of the terms of a contract or an agreement matter except the document itself. Furthermore, as again observed by the trial Chairman, the contradictions between the Appellants testimony and the testimonies of her own witness's vis a vis her pleadings cannot be ignored by this court. It is the cardinal principle of the law that a party cannot depart from her own pleadings. While the Appellant claims in her WSD that she purchased the suit land with her husband, she testified under oath that she was the one Page 11 of 14 who purchased it. The contradiction is major and it damages her credibility -1 seek guidance from the decision of the Court of Appeal in the case of Emmanuel Abraham Nanyaro Vs Peniel Ole Saitaballah [1987] TLR 47 which held inter alia that: unreliability of witnesses, conflicts, inconsistencies in their evidence entitle judge to reject evidence. Therefore, I find the evidence of the Appellant to be incoherent and inconsistent hence giving no weight at all. The last issue complained by the Appellant is that she has been in the occupation of the land for a very long time meaning that she is invoking the doctrine of adverse possession. Nevertheless, the Respondent evidence on the ownership of land proves that indeed the Appellants husband was merely invited to stay in the suit land. The appellant has not disputed that fact but she only indicated to believe that the Respondent registered the land in her husband's name. If that is what she believed, it means she agrees that the land was initially the property of PW1 and not Saidi Atwenga whom she said she purchased it from. Page 12 of 14 I fortify my stance above by the position of the Court of Appeal on the case of Magoiga Nyankorongo Mriri vs. Chacha Moroso Sa ire, Civil Appeal No. 464 of 2020 (CAT) (Unreported), where it was held that; ’'Where a party's claim arises after being in vited to stay on the suit land on terms prescribed, on the balance of probabilities, such a party is a mere Hcencee, that possession could never be adverse if it could be referred to as the lawful title." [emphasis added] The above principle was emphasized in the case of Musa Hassani Vs. Barnabas Yohanna Shedafa (Legal Representative of the late Yohanna Shedafa), Civil Appeal No. 101 of 2018 (unreported) where the Court stated that; "We wish to underline that an invitee cannot own a land to which he was invited to the exclusion of his host whatever the length of his stay. It does not matter that the said invitee has even made unexhausted improvement on the land on which he was invited, '’'[emphasis added] All said and done, in agreeing with the trial Tribunal, I find that the Respondent managed to prove his ownership of the suit land and the quality of his evidence was heavier and credible. Moreover, the trial court critically evaluated and analyzed the evidence of both parties as I have Page 13 of 14 shown above. I therefore find this appeal to be devoid of merits and I dismiss it with costs. R.A.Ebrahim Judge Page 14 of 14