JUMA MPINDA SAFI

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA LAND APPEAL NO. 25935 OF 2024 (Arising from Land Application No. 90 of 2019 in the District Land and Housing Tribunal for Singida) JUMA MPINDA................................................................ APPELLANT VERSUS SA LU MU LABIA MUGHANGA (As administrator of the Estate of the late Labia Mughanga Tikae)...................................................... RESPONDENT JUDGMENT l?h January & 2&h February, 2025 MUSOKWA, J. The appellant herein, was aggrieved by the decision of the District Land and Housing Tribunal for Singida (DLHT) in Land Application No. 90 of 2019. According to records of the DLHT, in 2019 the respondent was appointed to be the administrator of the estates of his late father namely Labia Mughanga Tikae who died in 1964. It is alleged that the deceased was the owner of a parcel of land measuring 10 acres located at Chungu Village, Ihanja Ward in Ikungi District, Singida Region, hereinafter referred to as the "suit land". The alleged appellant's acts of trespass to the suit land prompted the respondent to file a suit before the DLHT seeking for the declaratory order that the suit land belonged to his late father. After a full trial, the DLHT i considered the evidence adduced by both parties and decided in favour of the respondent. Aggrieved by the decision of the DLHT, the appellant approached this court containing the following grounds of appeal: - 1. That, the Trial Tribunal chairman erred in law and fact by deciding in favour of respondent without properly analysing the evidence and material facts surrounding the land in dispute. 2. That, the Trial Tribunal chairman erred in law and fact by relying on documents which were improperly admitted. 3. That, the Trial Tribunal chairman erred in law and facts by failing to consider appellants' defence in the determination of the case. 4. That, the Trial Tribunal chairman erred in law and facts by deciding in favour of the respondent while material witnesses and exhibits were not brought before the tribunal and it ought to draw a negative inference against the respondent. 5. That, the Trial Tribunal chairman erred in law and fact for hearing the matter and entering judgement against the appellant without any proof of ownership of the land in dispute from the respondent. 6. That, the trial Tribunal chairman erred in law and in fact for hearing the matter and entering judgment without one of the assessor's opinions. 7. That, the trial Tribunal chairman erred in law and in fact for ordering that the appellant is a trespasser over the respondent's land while the appellant was moved on the suit land by operation vijiji. 8. That, the trial Tribunal Chairman erred in law and in fact by failing to consider that the respondent's witness, PW2 testified against him on the ground that the respondent was evicted from the disputed land by the operation of the Government known as Operation Vijiji in 1975 the fact which was conceded. 9. That the trial tribunal erred in law and fact by determining the matter where the land in dispute is un­ 2 surveyed without having special mark and specific details. 10. That, the trial Tribunal Chairman erred in law and fact by failing to discover that the appellant was the first to occupy and use the suit land long before the respondent. It is also worth noting that the appellant filed three additional grounds of appeal. However, on 14th November 2024, the appellant prayed and he was allowed by this court to withdraw the additional grounds of appeal. At the request of the parties, this appeal was heard by way of written submissions and parties complied with the scheduling orders of this court. In this matter, the appellant and the respondent enjoyed the services of Mr. Faraji Mangula, and Ms. Maria Ntui learned counsels, respectively. Mr. Mangula, for the appellant, submitted on the 1st, 3rd and 10th grounds of appeal collectively. It was submitted that in the case of the National Microfinance Bank vs Chama Cha Kutetea Haki Na Maslahi Ya Walimu Tanzania (Chakamwata), Civil Appeal 17 of 2019, [2020] TZHC 2305, (28th August, 2020: TanzLII), this court held that failure to consider evidence of both parties is fatal in law. The same position was also held in the case of Hussein Iddi and Another vs Republic, [1986] TLR 166. The learned counsel submitted that, it is apparent at page 4 of the impugned judgement, that the appellant testified that the suit land was owned lawfully by his late father since 1986. Also, the appellant testified 3 on how he obtained ownership of the suit land. According to the testimony, the suit land was acquired after division of approximately 500 acres of land which were the property of the appellant's late father. That during the division of the land by his late father, the appellant's siblings namely, Zainab Mpinda was given 83 acres, Yohana Mpinda was given 83 acres, Ramadhani Mpinda was given 83 acres, Tatu Mpinda was given 50 acres and the appellant was left with 75 acres which he uses for agriculture, beekeeping and grazing of livestock. According to the appellant's rejoinder submissions, it is alleged that the DLHT failed to analyze the evidence that since 1986, when the appellant started to occupy the suit land until 2019 when the dispute began, it was about 33 years and the principle of adverse possession ought to apply. Further that, the application before the DLHT to recover land which formed part of the estates of the deceased, was time-barred as it exceeded 12 years. The time limit of 12 years is provided in the First Schedule, Items Number 21 and 22 and section 35 and 39 of the Law of Limitation Act, Cap. 89 R.E 2019 (LLA). The learned counsel concluded that, the consequences of a time barred application was a dismissal order under section 3(1) of the LLA. 4 On the 2nd, 4th and 5th grounds of appeal, the learned counsel stated that, the impugned judgment relied on the written agreement purported to be the appellant's commitment to compensate the respondent. It was submitted further that the said agreement was not tendered and admitted and the same did not feature in the pleadings of the parties. Similarly, at page 3 of the impugned judgment, the DLHT relied on the Exhibits Pl and P2 purported to be the Utemini Primary Court ruling dated 26/2/2024 extending time for the respondent to administer the estate of his deceased father. The said ruling gave the respondent locus standi to sue but the same was not properly tendered and admitted according to law. Further that, failure to abide by the procedure and process in tendering and admitting exhibits, resulted in the infringement of the parties' right to a fair hearing. Again, it vitiated the entire proceedings as held in the case of Rajabu Joseph vs Juliana Arusha, Civil Appeal No. 62 of 2022, [2023] TZHC 18992, (3rd July, 2023: TanzLII). The learned counsel for the appellant also cited the case of Hemedi Said vs Mohamed Mbilu [1984] TLR 113 and section 110(1) of the Evidence Act, Cap. 6 R.E 2022 (Evidence Act), which provides that he who alleges must prove his allegation. According to him, it was the duty of the respondent to prove that the suit land belonged to his late father by 5 tendering relevant exhibits and procuring the attendance of material witnesses to testify at the trial. However, the appellant claims that the respondent tendered no documents as proof of his ownership of the suit land. Further, the learned counsel submitted that, the respondent did not prove his case because he failed to bring material witnesses such as elder relatives and beneficiaries of the estates. The case of Jacqueline Jonathan Mkonyi & Another vs Gausal Properties Limited, Civil Appeal No.311 of 2020, [2023] TZCA 17326, (12th June, 2023: TanzLII) was cited to cement this point. In respect of the 6th ground of appeal, Mr. Mangula submitted that at pages 5 and 6 of the impugned judgment, it was stated that initially the DLHT was composed of the chairman and two assessors namely Mr. Elly Kindulu and Mrs. Amina Kisenge. However, when the DLHT visited the locus quo, only the chairman and one assessor, Mr. Elly Kindulu presided over the proceedings, which is contrary to section 23(1) (2) of the Land Disputes Courts Act, Cap. 216 R.E. 2019 (LDCA). The learned counsel cited the case of Rajabu Joseph (supra) to support this point. The learned counsel submitted on the 7th and 8th grounds of appeal collectively that, the DLHT erred to rely on the respondent's testimony that 6 the respondent's family moved in 1975 during operation vijiji. Section 3(1) of the Land Tenure (Established Villages) Act, Cap. 267 R.E. 2002 (Land Tenure Act) was cited which provides that the rights to occupy or use land which was owned prior to operation vijiji was extinguished. The reason is that it must be established, that the land in question was re-allocated to another person in accordance with section 15(1) of the Village Land Act, Cap.114 R.E. 2019 (Village Land Act). The appellant submitted that this position was established in the case of Innocent Bisusa vs Rajabu Rashid Mgozi, Mise. Land Application 31 of 2021, [2021] TZHC 6692, (25th October, 2021: TanzLII). As regards to the 9th ground of appeal, Mr. Mangula asserted that the respondent contradicted himself when describing the special mark and specific details of the suit land which is un-surveyed. In particular, the respondent failed to identify his neighbor in the south and east which was different from what was claimed in his application, as reflected at page 8 of the DLHT's judgment. Finally, the appellant prayed for this appeal to be allowed with costs and a declaration that the appellant is the lawful owner of the suit land. Another prayer by the appellant was to quash and set aside the judgment and decree of the DLHT. 7 In response to the written submissions in chief, Ms. Ntui, learned counsel for the respondent submitted on the 1st ground of appeal that; the DLHT in its judgment analyzed the testimony of both parties as well as the testimony of the respondent's witness. Upon the said analysis, it was found that, it was the respondent who was the first to occupy the suit land since 1975. It was further submitted that the respondent used the suit land for grazing and agricultural purposes since then. Regarding the opinion of assessors, Ms. Ntui submitted that the opinions of both assessors are reflected at page 57 of the DLHT's proceedings. In addition, it was submitted that, at page 5 of the DLHT's judgment, the opinions of both assessors were issued on 5/7/2024 and the opinion of the single assessor was issued on 2/10/2024. The other assessor was indisposed for medical reasons. This was lawful and adhered to section 23(3) of the LDCA. The DLHT elaborated the reason as to why he differed with the wise opinion of the assessors. Further that, after analysis of the evidence, the DLHT stated the decision and the reasons for the decision at pages 8 to 9 of the impugned judgment. Ultimately, the suit land was declared the property of the respondent who had continuously been using the suit land for a long time. As a result of the 8 continuous use of the suit land by the respondent, the appellant failed to prove adverse possession. The learned counsel for the respondent submitted further that, the DLHT rejected the evidence of the appellant as it was not credible and was further not corroborated. The respondent further strongly opposed the appellants assertions that the Exhibit marked Pl and P2 was improperly admitted. It was submitted that, the essence of the establishment of Land Tribunals was to eliminate legal or procedural technicalities in land matters. Ms. Ntui cited article 107A (2) (e) of the Constitution of the United Republic of Tanzania of 1977 (Constitution) to support this point. According to the respondent, this position was also stated in the case of TIB Development Bank Limited vs Space & Development Company Limited and 4 Others, Civil Case 167 of 2018, [2022] TZHC 13488, (22nd March, 2022: TanzLII). It was added that, the judgment cannot be entailed with all material facts of the case. It is a summary of relevant facts, issues, findings, and the justification as provided by Order XX Rule 4 of Civil Procedure Code Cap. 33 R.E. 2019 (CPC). As to the claim that the respondent failed to bring material witnesses and that PW2, PW3 and PW4 were unfamiliar with the suit land, the respondent 9 argued that proof of ownership of land may either be, by documentation or by the oral testimonies by credible witnesses. Accordingly, the respondent sought the attendance of material and credible witnesses who testified before the DLHT that the suit land was owned by the respondent's late father namely Labia Mughanga. It was further testified that the suit land was continuously in use by the respondent's family for grazing and farming activities. The evidence adduced at the DLHT was to the effect that the dispute arose in 2017 when the appellant trespassed into 10 acres of the respondent’s land. Further that, as compensation of the destruction of the graves of the respondent's relatives who were buried in the suit land, the appellant agreed to buy a sheep for ritual purposes. All the respondent's witnesses testified that the appellant buried his relative at the suit land in 2018 while the dispute was ongoing. Ms. Ntui added further that, the appellant failed to prove his ownership of the suit land to the required legal standard. The case of Abdisalim vs Kheri Salim [1967] H.C.D 203, and section 3(2) (b) of the Evidence Act were cited to cement this point. Therefore, the respondent's evidence was weightier than the appellant's who did not call any witnesses to corroborate his testimony. io The learned counsel for the respondent countered the appellant's allegations that the suit land is un-surveyed, thus does not contain markers and specific details, as baseless. The respondent argued that the appellant did not contest the measurements and boundaries of the respondent's clan land, from the pleading stage to the defense hearing. The case of Lodrick Immanuel Uronu vs Dharam Singh Hanspaul and Sons Ltd & Another, Mise. Civil Application 95 of 2022, [2023] TZHC 96, 31st March, 2023: TanzLII) was cited in support of the legal principle that, he who goes to equity must have clean hands. Ms. Ntui prayed that this appeal be dismissed with costs. Having gone through the parties' written submissions, and having taken into account the entire evidence on record, the sole issue to be determined by this court is whether or not this appeal is meritorious. To start with, I will refer to the celebrated legal principle stipulated under sections 110(1), (2) and 111 of the Evidence Act, which provides that in civil cases, the burden of proof lies with the party who asserts the affirmative of the issue. The said principle was emphasised in the case of Maria Amandus Kavishe vs Norah Waziri Mzeru & Another, Civil Appeal No. 365 of 2019, [2023] TZCA 31, (20th February, 2023: TanzLII) at page 15 and 16 the Court of Appeal of Tanzania (CAT) held that: - li "It is again trite law that the burden of proof never shifts to the adverse party until the party on whom onus lies, discharges his duty and that the burden ofproof is not diluted on account of the weakness of the opposite party's case."[Emphasis added] In the present matter, the respondent, who was the claimant in the suit at the DLHT, had the burden of proving his claim of ownership of the suit land. Regarding the 1st, 3rd, and 10th grounds of appeal, the appellant alleges improper analysis of evidence, failure by the DLHT to consider the evidence of the defence, and failure to invoke the doctrine of adverse possession. I have carefully perused the proceedings and judgment of the DLHT. In addressing the aforementioned issues, reference shall be made to page 6 of the DLHT's judgment, which provides that: - "The first issue framed was who between the Applicant and the Respondent is the lawful owner of the suit land? Both parties assert ownership of the 10 acres in dispute. The Applicant claims that the suit land belonged to his late father, Labia Mughanga Tikae, and the Respondent claims that the suit land is his after he inherited/was given the land by his father. PW2 Sombi Athumani Majuta joined hands with the Applicant, but stated that the Applicant's family were moved from the suit land in 1975 during Operation Vijiji, but continued to use the land for livestock grazing. The Applicant when answering a question for clarification from the Tribunal stated that they moved from the suit land in the 1980s for residential purposes, but continued using the land primarily for grazing and cultivation. 12 The Respondent on his part, has stated that he was given the suit land by his father in 1986 and his father passed away in 1992. However, this assertion of having been given the land by his father in 1986 has not been averred to in his written statement of defense. No witness was called to corroborate his testimony of him being given the suit land by his father in 1986 as he claimed. None of his siblings who were also given land by their father was called to come and corroborate his testimony"[emphasis added] Undoubtedly, the quotation above clearly indicates a summary of the gist of evidence adduced by both parties at the DLHT. Again, the judgment provides an analysis of the evidence adduced by the appellant, to the effect that the appellant's evidence was weak and uncorroborated. Notably, the judgment of the DLHT stipulates that, the appellant's assertion that he was given the land by his father in 1986 was not averred in his written statement of defence. As a result, the said assertion was not accorded evidential value. Clearly, the DLHT properly analyzed the evidence of the parties. Thus, the appellant's 1st, 3rd, and 10th grounds of appeal are unsubstantiated and fail entirely. Importantly, the appellant in his rejoinder submissions introduced new grounds of appeal which were not submitted in his submissions in chief. The new grounds of appeal related to failure by the DLHT to invoke the doctrine of adverse possession, including the issue of time limit. The appellant acknowledges that the aforementioned issues were completely 13 new and they were not addressed by the respondent. For the purpose of transparency, the appellant stated at page 2 of his rejoinder submission that "the same issue was not addressed by the respondent in their reply to written submission in chief. In total disregard of the fact that these were new grounds of appeal, the appellant proceeded with the attempt to launch his missiles through the back door. The appellant alleged that approximately 33 years had lapsed since 1986, when the appellant began to occupy the suit land until 2019 when the dispute arose. Therefore, the principle of adverse possession ought to apply. Similarly, the application to recover land which formed part of the estates of the deceased before the DLHT was time-barred, as it exceeded the statutory 12 year period. Upon a thorough perusal of the records, it has come to the attention of this court that the question of time limit was among the additional grounds of appeal which were withdrawn by the appellant on 14tn November, 2024. Indeed, it is a settled principle of law that in rejoining, a party is precluded to raise new issues. The reason is not far-fetched. Raising new issues in rejoinder submissions, deprives the adverse party the opportunity to address or contest the newly raised issues. This court (Hon. Morris J.) in the case of Zefania Mayenga Limbu and 3 others vs Republic, 14 Criminal Appeal No. 72 of 2022, [2023] TZHC 23581, (27th October, 2023: TanzLII) held as follows: - "With adequate respect, the counsel was duty bound to state the details of the alleged prejudice right in his submissions in chief. By so doing, the respondent would have been accorded an opportunity to address or contest the raised points. That is to say, settled is the general principle that in rejoinder, a party should not raise a new issue. I fully subscribe to such prohibition. In my view, condoning introduction and reintroduction of new matters during rejoinder proceedings, is as unscientific as driving a turned-off car without igniting it first." [Emphasis added] In another case of Mega Builders Ltd vs Dpi Simba Ltd, Mise. Commercial Application No. 414 of 2017, [2019] TZHC 144, (29th April, 2019: TanzLII), Hon. Phillip, J. partly held that: - "With due respect to the applicant's advocate, the new point on illegality that has been introduced in the rejoinder I cannot entertain it, leaving alone the fact that on the face of the records it has no merit, but also the same is not reflected in the pleadings completely. Parties are bound by their pleadings. Submissions are normally confined to what is pleaded. On top of that, it has to be noted that in a rejoinder a party is not supposed to bring in new points or arguments that did not feature in the submission in chief completely. In rejoinder a party is expected to make elaborations on his/her points in the submission in chief as well as respond to any issues raised by the respondent while responding to the submission in chief. Thus, under the circumstances the point on illegality is a pure afterthought in this application." [Emphasis added] For reasons aforesaid, this court cannot entertain the appellant's new issues on the doctrine of adverse possession and time limitation. 15 The appellant's 4th, 5th and 7th grounds of appeal state that the DLHT erred in law and fact by deciding in favour of the respondent for want of evidence. In particular, the appellant alleges that there was no proof of ownership of the suit land by the respondent or his deceased father due to lack of material witnesses and documentary evidence. In proving ownership of the suit land at the DLHT, the respondent testified as PW1 and summoned three more witnesses namely; Sombi Athumani Majuta (PW2), Abdilah Nassoro Musa (PW3) and Samwel Hamisi (PW4). The said witnesses supported the respondent's evidence regarding ownership of the suit land. Additionally, the DLHT visited the locus in quo and on the balance of probability, was satisfied that the suit land belongs to the respondent. Another argument advanced by the appellant, is that the ruling of Utemini Primary Court was not properly admitted before the DLHT. This argument will not detain me. Looking at pages 27 to 29 of the typed proceedings of the DLHT, the said ruling was properly admitted and the appellant had no objection. For the sake of argument, even if the said ruling was not properly admitted, as long as it is a public document with a seal of the court, the DLHT ought to take judicial notice in terms of section 59 (1) (d) of the Evidence Act. 16 Likewise, the appellant submitted that there was no documentary evidence to prove the ownership of the un-surveyed parcel of land in favour of the respondent. However, the appellant failed to cite any law that compels proof of ownership of un-surveyed land, to be by way of documentary evidence only. Certainly, the evidence adduced may be of various modes. However, of paramount importance is the discharge of the burden of proof to the required legal standard by the one who alleges, as correctly held in the case of Maria Amandus Kavishe (supra). The case of Jao Oliveira & Another vs IT Started in Africa Limited & Another, Civil Appeal No. 186 of 2020, [2023] TZCA 7, (8th February, 2023: TanzLII) is also relevant to fortify this point and it was held as follows: - "Ordinarily, in civil proceedings a party who alleges anything in his favor also bears the evidential burden and the standard of proof is on the balance of probabilities which means that, the court will sustain and uphold and sustain such evidence which is more credible compared to the other on a particular fact to be proved" [Emphasis added] In the present case, the evidence of the respondent had more weight, was more credible and reliable compared to the evidence adduced by the appellant. Importantly, the appellant cited the case of Mwinyihatibu Jumaa Hatibu vs Ridhiwani Jumaa Hatibu, Civil Appeal No.70 of 2020, [2023] TZCA 17620, (18th September, 2023: TanzLII), as an authority that 17 proof of un-surveyed land requires documentary evidence only. In that case, the parties litigated over the ownership of the house situated on Plot No.15 Block "KB VII" Chumbageni area within Tanga City. The said case stressed that the certificate of title is a vital and conclusive evidence to prove ownership of land. Needless to say, had the suit land in the present case, been surveyed and issued with a certificate of title, then the afore cited case would have been applicable. However, that is not the case in the present matter. Fortunately, this fact is also admitted by the appellant in his 9th ground of appeal whereby it is partly claimed that "the land in dispute is un-surveyed" Thus, with due respect, the appellant has improperly invoked the case of Mwinyihatibu Jumaa Hatibu (supra). Hence, the appellant's critique of the findings of the DLHT through the 4th, 5th and 7th grounds of appeal, is without justification. Accordingly, I find the said grounds of appeal devoid of merits. I will now address the 2nd ground of appeal, whereby the appellant alleges that the DLHT relied on documents which were improperly admitted, particularly Exhibit Pl and P2. For the purpose of transparency, at pages 27 to 29 of the DLHT's trial proceedings it is recorded that: - 18 "The witnesses testify as follows: - Your hon, I was appointed by court and I have probate forms. The form has my picture and stamp of the court. I pray that the probate form be received in evidence as an exhibit. Tribunal: The original probate form is brought to court for its inspection by the Respondent. Sgd B.J. Shuma Chairman 22/3/2024 Adv. Ndimbo: Your hon, I have no objection Sgd B. J. Shuma Chairman 22/3/2024 Order: 1. Probate Form No. 11/ dated 26/9/2019 is tendered by PW1 and received in evidence as Exhibit Pl. Sgd B. J. Shuma Chairman 22/3/2024 Tribunal: The contents of Exhibit Pl are read out in court. Sgd B. J. Shuma Chairman 22/3/2024 I was appointed as administrator in 2019. I was to dose the probate matter within 4 months. More than 4 months have lapsed. I went back to the court and asked for more time. I was given an extension of time. I was given a letter extending the time. The letter has a stamp of the court. Tribunal: The original letter is shown to the tribunal and the respondent's counsel. Sgd B. J. Shuma Chairman 22/3/2024 19 Adv. Ndimbo: Your hon, I have no objection Sgd B. J. Shuma Chairman 22/3/2024 Order: Ruling of the Utemini Primary Court dated 26/2/2024 extending the applicant time to administer the estate is tendered by PW1 and received in evidence as Exhibit P2. Sgd B. J. Shuma Chairman 22/3/2024 Tribunal: The contents of Exhibit P2 are read out in court. Sgd B. J. Shuma Chairman 22/3/2024 Basing on the above proceedings, and without prejudice to the holding of this court on the question of judicial notice with regard to Exhibit P2; I am of the view that both Exhibits Pl and P2 were properly admitted before the DLHT. As a result, the 2nd ground of appeal is unfounded and is dismissed. Regarding the 6th ground of appeal, it is claimed that the DLHT heard the matter and entered judgment without obtaining the opinion of one of the assessors. Seemingly, the genesis of this ground of appeal is that the assessor namely Mr. E. Kindulu was present at the commencement of proceedings, but his tenure of office came to an end before the final determination of the matter by the DLHT. Therefore, the DLHT remained 20 with only one assessor until the delivery of the judgment. In order to address the propriety or otherwise of the proceedings of the DLHT, under the aforementioned circumstances, it is important to make reference to section 23(3) of the LDCA which provides as follows: - "Notwithstanding the provisions of subsection (2), if in the course of any proceedings before the tribunal, either or both members of the Tribunal who were present at the commencement of proceedings is or are absent, the chairman and the remaining member, if any, may continue and conclude the proceedings notwithstanding such absence"[Emphasis added] The cited provision is clear that the DLHT may continue and conclude the proceedings regardless of the absence of either or both members. In the instant case, the DLHT was correct to conclude the proceedings with the remaining assessor namely Mrs. Kisenge. At page 59 of the DLHT's typed proceedings, the parties were duly informed on the absence of one assessor and the corresponding reason thereof. For convenience, the records state: - "Tribunal: ...Both parties are present. However, the tribunal consists of the chairman and one assessor, Mrs. Kisenge. The other assessor who had the conduct of the case, Mr. E. Kindulu... He was not present because his tenure of office had come to an end. Parties were notified of this. Therefore, in terms of section 23(3) of the Land Disputes Courts Act, Cap. 216, the tribunal was to proceed with the remaining assessor, Mrs. Kisenge " [Emphasis added] 21 In the event, I also find the appellant's complaint on the 6th ground of appeal without merits. Thus, it is entirely dismissed. The appellant submitted on the 7th and 8tn grounds of appeal collectively, alleging that the appellant was moved on the suit land by operation vijiji. At page 8 of the DLHT's judgment, it is recorded that: - "This is so, because in as much as the applicant stated that they left in the 1980s and PW2 stated that the applicant's family moved in 1975 during Operation Vijiji, both PW1 and PW2 stated that the land was still being used for grazing of livestock by the Applicant and cultivation. .. In effect the land was not abandoned, to give rise to adverse possession by virtue of long usage, but was still being used by the Applicant. The assertions by the respondent that he was given the land in 1986 do not feature in his pleading, nor is it corroborated by any other witness. I therefore find the first issue in favor of the Applicant."[Emphasis added] The evidence is clear that the suit land was not re-allocated to the appellant or to any other person during operation vijiji. This is so because the respondent's family used the suit land for a long time for grazing of livestock and cultivation until in 2017 when trespass was alleged. In the circumstances, the case of Innocent Bisusa (supra) cited by the appellant is in favour of the respondent. For details, Hon. Matuma J, partly held that: "In the absence of the evidence of re-allocation of lands during operation vijiji, the Land Tenure (Established Villages) Act, 1992 under rule 3(2)(b), it is well settled that the land which was not re-allocated or established as a result of operation vijiji, the rights of owners thereof 22 to occupy or use it was not extinguished merely because there was operation vijiji. The same provides; 'For the avoidance of doubt the extinction of rights under subsection (1) of this section shall not effect (a) Not relevant (b) Any right to use or to occupy any land in accordance with any custom or rule of customary law existing in village which was not established as a result of operation vijiji'. In the instant matter there is no evidence that there was reallocation of land in that village during operation vijiji nor that the same was established as a result of operation vijiji. "[Emphasis added] In consequence thereof, the 7th and 8th grounds of appeal are unsupported in law and I therefore proceed to dismiss them. On the 9th ground of appeal, it is alleged that the respondent contradicted himself when describing the special mark and specific details of the suit land which is un-surveyed. In addition, the respondent failed to identify his neighbor in the South and East. In response thereof, I will start by making reference to Order VII rule 3 of the CPC. The said provision states that "where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it". The respondent's pleading at the DLHT describes the suit land at paragraph 3 as "Chungu Village, Ihanja Ward, Ikungi District, within Singida region; the land is bordered by the following, from the East bordered by Shedrack Mdaa, 23 from the West bordered by Dahau Kijida, from the North bordered by Ntui Mpembee and from the South bordered by Ivevee River". Undeniably, the description of the suit land was sufficient for the purpose of identification. Furthermore, at pages 7 and 8 of the judgment of the DLHT, it reads: - "When the Tribunal visited the locus in quo on 26/9/2024, parties generally agreed on the most aspects of the land... the parties also seem to confuse the compass direction of the suit land; a matter that was dispelled after the Tribunal visited the locus in quo and drew a sketch map of the suit land. According to the sketch map which was agreed to by the parties, the River Ivevee borders the suit land in the North, with Shadrack Mdaa bordering the suit land after the cattle path in the East, the Respondent borders the suit land in the West across the cattle path."[Emphasis added] Upon visiting the locus in quo by the DLHT, the parties generally agreed on the most aspects of the suit land, and there was no dispute that the size of the suit land is 10 acres. Also, the confusion on the compass direction was dispelled by the said visit, and the sketch map was drawn which was agreed by both parties. Since the respondent's pleading provided sufficient description of the suit land; and considering that the DLHT visited the locus in quo, the contradictions alleged by the appellant are not substantial and do not go to the root of the matter. Therefore, the 9th ground of appeal is unsupported and fails. 24 In conclusion, and having carefully considered all grounds of appeal, I am of the settled view that there is no justification to fault the judgment of the DLHT. Indeed, the respondent discharged his burden to prove his case on the balance of probability in terms of section 3 (2)(b) of the Evidence Act. Ultimately, this appeal is devoid of merits and it is hereby dismissed with costs. It is so ordered. Right of appeal is fully explained. Judgment delivered in the presence of the appellant; and in the presence 25