LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA LAND APPEAL NO. 24 OF 2023 KEVINA RUBEN KAYINGI APPELLANT VERSUS LINAS AMOS RESPONDENT (Appeal from the Judgment and decree of the District Land and Housing Tribunal for Kigoma at Kigoma) (F. Chinuku, Chairperson) Dated ih day of March 2023 In (Land Application No. 15 of 2022) JUDGMENT Date: 30/07 & 23/10/2024 NKWABI, J.: The appellant is super aggrieved by the decree of the District Land and Housing Tribunal for Kigoma. The appellant lodged a land application in the trial tribunal pursuing to be declared owner of the disputed piece of land, permanent injunction against the respondent from trespassing into the disputed piece of land, costs and any other reliefs the tribunal would deem fit to grant. Owing to failure to.prove the suit, the application was dismissed on merit. The trial tribunal found that the appellant's evidence was contradictory on material particular thus incapable of being relied upon. It was also held that the appellant did not tender documentary 1 evidence to prove her claim over the piece of land. She has lodged a petition of appeal with grounds of appeal thus: 1. That, the trial District Land and Housing Tribunal erred in law and fact by dismissing the appellant's claims on the flimsy ground that she did not prove her ownership of the land in dispute while there was no one to oppose her. 2. That, the trial district land and housing tribunal erred in law and facts when it overruled the claims of the appellant that the village land council acted ultra vires by awarding the suit land to the respondent and there was no place to appeal against the orders of the village land committee because the ward tribunal was not in place by that time. 3. That the trial district land and housing tribunal erred in law when it considered the minor errors when the appellant confused the years when she acquired the suit. Attempts to serve the respondent physically failed. She was served by th way of publication in Mwananchi Newspaper which is dated 4 October, 2023 without success. The appeal was therefore heard ex-parte by way of oral submissions. The appellant appeared in person, unrepresented. 2 In the hearing, the appellant did not have anything to expounding her grounds of appeal, understandably, she is a layperson in law. She merely asked she be availed with her rights and that the respondent does not appear. She prayed that she is declared the winner. I will commence the determination of the appeal with the 1st ground of appeal which is that the trial District Land and Housing Tribunal erred in law and fact by dismissing the appellant's claims on the flimsy ground that she did not prove her ownership of the land in dispute while there was no one to oppose her. Now, the question is, was the dismissal of the appellant's application based on the basis that she had not proved her ownership over the disputed piece of land flimsy? On this ground of appeal, it is necessary to look at what the trial tribunal stated in its decision. The trial tribunal stated that the applicant therein had not tendered any exhibit to prove that the piece of land was allocated to her. There is neither documentary proof nor people who witnessed the allocation tendered and brought by the applicant respectively. The appellant was a sole witness, she did not tender any document proving allocation of the alleged piece of land by the village 3 council to her. She was expected to tender the minutes of the village council meeting that allocated the piece of land to her. She failed to do so contrary to the decisions in Zuberi Augustina Mugabe v. Anicet Mugabe [1992] T.L.R. 137 CAT and Alfred Fundi v. Geled Mango & Two Others [2019] T.L.R. 42 where, in the latter case, it was stated that: ''In the instant case, the Appellant had not produced any documentary evidence to substantiate and justify the claim. As such therefore, there was no verifiable evidence to prove that the appellant incurred costs. There should have been proof that he actually sustained those injuries following the said accident and consequently he incurred specified costs and medical expenses for his injuries and such costs and medical expenses should have been supported by respective medical receipts. These supporting documents were not produced before the trial court " She even did not say she would attach such a document in her application document. She also did not plead she lost that document. She cannot depart from her pleading, neither can this Court because the appellant and the Court are bound by the pleadings. I parrot Barclays 4 Bank (T) Ltd v. Jacob Muro, Civil Appeal No. 357 of 2019 CAT where it was stressed that: "We feel compelled, at this point, to restate the time- honoured principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at variance with the pleaded facts must be ignored." See also Maria Amandus Kavishe v. Norah Waziri Mzeru & Another, Civil Appeal No. 365 of 2019, CAT, it was underscored that: "We also feel compelled, at this point, to restate the time-honoured principle of law that parties are bound by their own pleadings and they cannot be allowed to raise a different matter without amendments being properly made. That, no party should be allowed to depart from his pleadings thereby changing his case from which he originally pleaded. Furthermore/ the court itself is as bound by the pleadings of the parties as they are themselves. " 5 In addition to that the trial tribunal found that the appellant contradicted herself on material particular in the evidence in respect of when she was allocated the piece of land. I do not see any wrong in considering the contradiction. The fact that the land application was unopposed as it was heard ex-parte so the appellant should have won the case, that is irrelevant. The appellant remained with the duty of proof as was stated in Kalyango Construction & Building Contractors Ltd v. China Chongquing International Construction Corporation (CICO), Civil Appeal No. 29 of 2012, CAT (unreported) where it was underscored that: "The appellant was the one who sued the respondent Regardless of whether the matter proceeded exparte or not, he had the duty of proving the case against the respondent on the standard required. '' It is based on the above reasons that I find that the 1st ground of appeal unmerited. It is rejected. Next, I canvass the 2nd ground of appeal which is that the trial district land and housing tribunal erred in law and facts when it overruled the claims of the appellant that the village land council. acted ultra vi res by awarding the suit land to the respondent and there was no place to 6 appeal against the orders of the village land committee because the ward tribunal was not in place by that time. The 2nd ground of appeal too is not merited. It should be remembered that the appellant, in the trial tribunal, did not file an appeal. She filed a fresh land application claiming for among other reliefs she be declared owner of the disputed piece of land. She failed to prove the land application. She cannot complain against the trial tribunal as she did in the 2nd ground of appeal because the trial tribunal was not sitting like an appellate tribunal. The 2nd ground of appeal is, accordingly devoid of merit. It crushes to the ground. Lastly, I consider the 3rd ground of appeal which is that the trial district land and housing tribunal erred in law when it considered the minor errors when the appellant confused the years when she acquired the suit. This ground of appeal, is with respect to the appellant, raised by a person who is naive to the law. This is because that was only one of the grounds for the decision by the trial tribunal that the appellant had failed to prove her land application. There were other grounds such as failure to tender documentary evidence and failure to call witnesses to bear her out. The 3rd ground of appeal remains crumbling to the ground because it has no any merit. 7 In the end, on account of the above exposition of the law and analysis of the evidence on record, I find that the appeal is unmerited. I dismiss it. I make no orders as to costs because the respondent neither appeared nor contested the appeal. It is so ordered. 8