AGNES SAPILA VS KHADIJA ABDULMAJID GEYASH DRAFT Judgment

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO 2496 OF 2024 (Arising from the District Land and Housing Tribunal at Dodoma in the Land Application No. 09 of 2017). BETWEEN AGNES SAPILA (As Administratrix of the Estate of late Daudi Mnyirika)………………………………………...……………….1st APPELLANT AGUSTINO JOSEPH…………….…………………………………………2ND APPELLANT SALUM KIBWANA………………………………………………………….3RD APPELLANT VERSUS KHADIJA ABDULMAJID GAYESH ….……………………………..……..RESPONDENT JUDGMENT Date of last order: 18/11/ 2024 Date of Judgment: 17/02/ 2025 LONGOPA, J.: The appellants and respondent were parties to a land dispute before the District Land and Housing Tribunal for Dodoma since 2017 when the respondent instituted an application against all the appellant claiming that she is the rightful owner of the land in disputed. The respondent alleged that she is the lawful and rightful owner of land described as Plot No 32 Block E Nkuhungu. She claimed to have 1|Page purchased the land from the 1st appellant on 28th March 2011 at consideration of Tanzanian Shillings two million (TZS 2,000,000/=) only. The respondent prayed for an order that the disputed land belonged to the respondent; order that sale transactions between the 1st appellant and other persons should be declared nullity; order of permanent injunction restraining the 1st appellant and all other persons on that particular land and grant vacant possession of the land to the respondent; order for general damages amounting to TZS 10,000,000/= as well as costs of the case. It is on record that the application was determined sometimes in 2019 but that decision was overturned by the High Court for failure to adhere with the role of assessors thus an order to re-hear that matter before another Chairman with a different set of assessors. Upon conclusion of the hearing, the District Land and Housing Tribunal for Dodoma on 25th October 2023 entered Judgment and decree in favour of the respondent by declaring that the respondent is the lawful and rightful owner of the disputed property, a permanent injunction against all the appellants issued to restrain appellants or any other persons 2|Page from entering into the suit land, and that the 1st appellant is condemned to pay costs of the case. It is this decision of the Tribunal that made all the appellants dissatisfied thus on 9th February 2024 preferred an appeal against the whole of the judgment and decree on the following grounds, namely: 1. That the Honourable Chairman erred in law and fact by ordering visitation of locus in quo, visit the site without recording findings or facts obtained, without reading report of site visitation to the parties and sufficient reasons was made thereafter. 2. That the Honourable Chairman erred in law and fact for illegality and without proper procedure to enter order of assessors’ opinion and use their opinion in composing the judgment while there is no date the matter was scheduled for assessors’ opinion and no order was made to the assessors to prepare their opinion. 3|Page 3. That the Honourable Chairman erred in law and fact for deciding the case in favour of the respondent without considering that the 1st appellant has never sold Plot Number 32 Block E Nkuhungu to the respondent, no documents were tendered by the respondent on agreement to change the plot and advocate was not summoned to witness the respondent’s evidence. 4. That the Honourable Chairman erred in law and fact for deciding in favour of the Respondent without considering that the 1st Appellant only sold portions of land in dispute to the respondent’s son, the 2nd appellant, Tusana Angelo who later sold the same to 3rd appellant. The 2nd and 3rd appellants after purchasing, they managed to construct houses and have been living there up to date. 5. The Honourable Chairman erred in law and fact for deciding in favour of the respondent without considering strong and supportive evidence adduced by the appellants 4|Page and their witnesses while basing on wrong, weak and contradictory evidence by respondent and her witness. It was on 18th November 2024 when the appeal was scheduled for hearing when the parties requested for the hearing of the same through written submission an order that was granted. The parties complied to the scheduling order of submission. Mr. Ayub David Suday, learned advocate filed the submission in chief for the appellants while Ms. Neema Ahmed, learned advocate on behalf of the Tanzania Women Lawyers Association drafted gratis, the reply submission for the respondent. Both advocates are commended for their critical and persuasive submissions. The appellant argued that the procedures for site visitation were not adhered to as no findings was made on facts obtained, report of site visitation was not read to parties, no sufficient reasons was made thereafter and the procedures of site was not adhered. The case of Nizar M.H. Ladak vs Gulamali Fazl Jan Mohamed [1980] TLR 29 was cited to reiterate the holding that when visiting locus in quo is necessary, the court should attend with parties and advocates, if any, and with each witness as may have to testify in that particular matter…when re-assemble 5|Page in court room, all such note should be read out to the parties and their advocates, and comment, amendments, objections called for if necessary incorporated. Further, the appellant cited a case of Kimonimitri Mantheakis vs Ally Aziz Dewji and 7 Others, Civil Appeal No. 4 of 2018, the Court of Appeal of Tanzania, at Dar es Salaam (Unreported), at pages 8-9, where it was observed that “for the visit in locus in quo it is instructive to consider; one, all parties, their witnesses, and advocates (if any) are present. Two, allow parties and their witnesses to adduce evidence on oath. Three, allow cross examination. Four, record all the proceedings. Five, record any observation, views, opinion, conclusion of court including drawing a sketch plan if necessary. It was appellant’s submission that considering the locus in quo in this case, it is evidently that the same was illegally conducted thus affecting the whole of the proceedings of the case. On the second ground, it was submitted by the appellant that after hearing of evidence of both parties and after the visitation no order was 6|Page made by the Honourable Chairman for assessors to prepare opinion and no date was scheduled for opinion to be read in court. It is the requirement of the law that assessors have to prepare their opinion but it not automatic as it is subject to the order and direction of the Tribunal. Upon being prepared, it is duty bound to the Tribunal to set a date for reading of the opinion of the assessors before the parties. It was submitted that this procedure was not adhered to as the opinion that was used in composing the judgment was illegally obtained without proper procedures. On the third ground of appeal, it was stated the evidence do not reveal that there was an agreement to sell land between 1st appellant and respondent. The land is stated to have been located at Plot Number 32 Block E Nkuhungu and the evidence on record reveals that the 1st appellant sold the land to respondent’s son, to the 2nd respondent and one Tusana Angelo who sold the same to the 3rd appellant. It is on record that 2nd and 3rd appellants after purchasing the land managed to constructed houses and they have been living there up to date. Such evidence is acknowledged 7|Page in the judgment on pages 3 and 4 that 1st appellant only sold land to respondent’s son. It was argued that respondent’s evidence was weak and contradictory to the extent that the if the 1st appellant sold portion of land to the respondent’s son and the respondent herself confirmed, it is not clear how the transfer as illustrated by Exhibit P1 was written that the whole land was sold to the respondent without including her son. Further, the respondent stated to have purchased Plot Number 102 Block E Nkuhungu but the same was not tendered nor mutual agreement was tendered, no witness was brought to support the same and nothing to show the exchange to another Plot Number 32 Block E Nkuhungu. The appellants cited section 3(2)(b) of the Evidence Act which provides for proof of cases of civil nature to be based on balance of probabilities as evidenced by the decision in the case of Hemed Said vs Mohamed Mbilu [1984] TLR 113 that in civil case the person with heavier evidence than that of the other is the one who must win the case. It was reiterated that considering the evidence of the parties, the appellants 8|Page evidence and their witnesses have strong evidence as the 1st appellant only sold a portion of land to the respondent’s son, the remaining portion was sold to the 2nd appellant and one Tusana Angelo who later sold the same to the 3rd appellant. The acquisition by the 2nd and 3rd appellants was done since long time and have been using the land peacefully up to the time when the dispute occurred. With respect to fifth ground of appeal, it was submitted that appellants had strong evidence as found on the record of proceedings, the 2nd and 3rd appellants are occupiers of the land since long time who have been using the suit land as settlement up to date. It was stated further that evidence of the respondent was wrong, weak and contradictory due to the following reasons: one, the respondent’s evidence admits to have purchased a different land which is Plot Number 102 Block E Nkuhungu Area but no sale agreement was tendered. Two, the respondent testified that later they exchanged to Plot Number 32 Block E Nkuhungu but no deed of agreement was tendered. Three, the respondent in her evidence admitted that her son purchased only a portion of land that was not disputed by the 1st appellant. Four, the respondent, the respondent 9|Page testified to have purchased the remaining portion but no sale agreement was tendered on the said portion. Five, Exhibit P 1 tendered by the appellant contradicts here evidence on transfer of offer of right of occupancy show the transfer of the whole land while evidence clearly showed that her claim is purchase of portion of land. It was reiterated that in her evidence, the respondent did not dispute the long-term ownership of the 2nd and 3rd appellants have been at the disputed land hence the evidence of the respondent is not sufficient to win the case. At this juncture, the appellants prayed that this Honourable court be pleased to find merits on the appellants’ grounds of appeal, allow the appeal with costs and set aside both judgment and decree of the District Land and Housing Tribunal. On the other hand, the respondent stated that the Respondent herein filed Land case No. 09/2017 before District Land and Housing Tribunal which was decided in her favour on 25th October 2023 due to the strong and vivid evidence adduced by the respondent. 10 | P a g e It was respondent’s submission that while respondent acknowledges with appreciation the two cited cases by the appellants on the established legal principles in regards to visit in quo, it was respondent’s view that both cases are distinguishable. One, that the trial Tribunal’s judgment never made any reference or reliance to any findings or observations obtained in the supposedly visit in quo. The trial Tribunal only relied on evidence tendered during the trial and most importantly on Exhibit A.E-1 tendered by SM 2, a sale contract between the respondent herein and the 1st appellant. Thus, failure to record the visit did not vitiate the proceedings of occasion injustice to the appellants herein since the documentary evidence tendered during trial was sufficient. Two, Section 45 of the Land Disputes Courts Act, Cap 216 R.E 2019 insulates decisions on errors occasioned in course of the proceedings unless the same occasioned injustice. The respondent’s view is that nothing occasioned injustice to the appellants. With regards to the second ground of appeal, it was argued that assessors were availed opportunity to prepare and read the opinion of the assessors before the parties as reflected in page 30 of the proceedings. 11 | P a g e The respondent invited this Court to thus find that the second ground lacks merits. In response to the third ground of appeal, it was stated that although 1st appellant avers that she has never sold plot number 32, Block E Nkuhungu to the Respondent, the 1st appellant failed to dispute Exhibit A.E. 1 and Exhibit P.1 collectively. Vide the admission, the trial Tribunal’s Chairman correctly found in favour of the respondent on pages 6,11 and 12 of the Judgment and by virtue of the principle in Salum Mohamed @Mndia vs R, Criminal Appeal No. 321 of 2021, CAT (Unreported) which provides that “it is trite law that failure to object an admission of exhibit is tantamount to an admitted fact”. Furthermore, it was submitted by the respondent herein that the agreement entered by both parties and exhibit to prove the same was tendered during trial. The respondent cited the case of M/S Tourism Promotion services (Tanzania) Limited vs M/S Green Apartments ltd, Land case No.11/2019 High Court of Tanzania, Arusha District Registry at Arusha, where the Court (Kamuzora, J) refers to two cases of 12 | P a g e the Court of Appeal in regards to sanctity of contract; the case of Lulu Victor Kayombo v. Oceanic Bay limited and another, Civil appeal No 22 & 155 0f 2020 the court emphasized on the duty of parties to honor the terms of their contract and duty of the court to enforce the parties’ agreement; the case of Simon Kicheche Chacha Vs Aveline M. Kilawe, Civil appeal, No. 160 of 2018, the Court also referred to the principle of sanctity of contract and insisted that the cardinal principle of law of contract is that parties are bound by their agreement freely entered. It was at this juncture that the respondent submitted that this court should disregard in entirety the third ground of appeal as the 1st appellant and respondent had entered in a contract for disposition by sale of the dispute land. On the fourth ground, the respondent submitted that the Honorable Chairperson was correct for deciding the Respondent is a lawful owner of the disputed land. The respondent cited pages 3 and 4 of the trial Tribunal’s judgment as evidencing the findings that the sale of land existed 13 | P a g e as the Tribunal’s Chairman stated that the remaining portion of land was sold to respondent. In the last ground of appeal, it was submitted by the respondent that the sale agreement in regards to the dispute land between 1st appellant and respondent herein was tendered and admitted as Exhibit A.E 1 and further not disputed by 1st appellant which is equivalent to acknowledging its content. In the upshot and on strengths of the submissions made, it was the prayer of the respondent that this Court be pleased to dismiss this appeal in its entirety with costs and uphold the decision of the Trial Tribunal declaring the Respondent herein as legal and rightful owner of the dispute land (Plot No.32 Block E Nkuhungu). I have dispassionately considered the rival submissions of the parties in this appeal, thoroughly evaluated and analysed available record in light of the preferred grounds of appeal to find out if there is an iota of merits or otherwise on this appeal. 14 | P a g e The main contention between the parties is whether or not there existed a proof of sale of the land by 1st appellant to the respondent to warrant the trial Tribunal’s Chairman to find that the respondent was a lawful and rightful owner of Plot No 32 Block E Nkuhungu. This is a critical aspect of determination before this Court as it was the main framed issue before the District Land and Housing Tribunal for Dodoma in the Land Application No 09 of 2017 subject of this appeal. In fact, it addressed the 3rd, 4th and 5th grounds of the appeal. It is noted that this Court is the first appellate court on this matter. It has all the powers of the trial Tribunal thus in exercise of the powers of the first appellate court, this Court has fully powers to analyse and re-evaluate the available evidence on record to come up with its own independent finding. The court is guided by the principle in the case of Athumani Amiri vs Hamza Amiri & Another (Civil Appeal 8 of 2020) [2022] TZCA 772 (6 December 2022) (TANZLII), at page 13, the Court of Appeal stated lucidly that: Before doing so, it is crucial to state that, this being a first appeal, it is in the form of a re-hearing, therefore the 15 | P a g e Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and, if warranted arrive at its own conclusion of fact – see D.R. Pandya v. Republic [1957] EA 336 and Jamal A. Tamim v. Felix Francis Mkosamali & The Attorney General, Civil Appeal No. 110 of 2012 (unreported). To be able to determine, it is pertinent to provide a summary of evidence on record. PW 1, Khadija Abdulmajid Geyash, stated that 1st appellant sold an acre of land to the respondent’s son in 2011 which is not subject of this appeal. PW 1 informed that it was at that juncture she knew that 1st appellant wanted to sell the remaining portion of land thus the respondent consulted with her relatives in order to purchase the land for building a Mosque as Wakf property. According to PW 1, on 28th March 2011, she bought disputed land described as Plot No 32 Block E Nkuhungu but the sale agreement /transfer of an offer of the right of occupancy indicated that it was Plot No 102 Block 16 | P a g e E Nkuhungu. PW 1 stated upon visit to Capital Development Authority (CDA) found that the Plot No 102 Block E Nkuhungu was not belonging to the 1st appellant as he had no plot at all save for that of her deceased husband described as Plot No 32 Block E Nkuhungu. PW 1 prayed to tender documents collectively as Exhibits namely: a Transfer of Offer of a Right of Occupancy dated 28th March 2021, a Municipal Director Letter dated 16th June 2014 and a Note Minute from the Municipal Land Officer named Lihweuli dated 18th June 2014, the same was admitted and Marked as Exhibit P.1 collectively. PW 1 informed the Tribunal that such land was bought at consideration Of TZS 2,000,000/= and paid in cash at the land bought i.e. Plot No 102 Block E Nkuhungu. PW 1 stated that it was on the next day when 1st appellant and respondent went to reduce the agreement into writing before late advocate Joshua Oguda. According to PW 1, sell of the land had no witnesses on party of the 1st respondent but there were two witnesses on the party of the respondent to witness the transaction. The advocate was not one of the 17 | P a g e witnesses. There was no neighbour, ten cell leader or Street Chairman who witnessed the sale. The purchase price was contributed by three relatives of the respondent. It is PW 1 who paid to the vendor, the 1st appellant. PW 2 was one Rabeka Charles Balisidya who stated that on 28th March 2011 there was an agreement for sale of Plot No. 32 Block E Nkuhungu between the 1st appellant as the administratrix of the estate of the late Daudi Mnyirika and respondent. The sale amount was TZS 2,000,000/=and was witnessed by deceased advocate Joshua Oguda as per records in their office. He prayed to tender the sale agreement found in the advocates office. The exhibit was read before the parties and finally admitted as Exhibit A.E.-1. According to PW 2, the sale was witnessed by deceased advocate one Joshua Oguda. PW 2 stated that she does not know whether the purchase price was paid at the farm or at the office. That was all on part of the respondent’s evidence. 18 | P a g e The evidence of the appellant revealed that: DW 1, one Agnes Sapila Midatu stated that respondent went to her after she sold land to the respondent’s son. The 1st appellant informed the Tribunal that before respondent’s son purchased the land, he told her to be appointed as an administratrix of the estate of 1st appellant’s husband so that the ownership can transfer to 1st appellant. It was DW 1 that the applicant took all the documents to court. According to DW 1, she only sold land to 2nd and 3rd appellants before the dispute arose but DW 1 refuted to have sold the land to respondent herein. DW 1 stated that the respondent has retained the documents todate. Disposition of the land if any ought to have been done before Chairman of the Street or Ten Cell leader. DW 1 stated that the thumb print is not hers and the sale agreement is also not hers. The respondent never purchased any portion of land and that no any sale agreement was entered between the 1st applicant and respondent. 19 | P a g e DW 2, one Augustino Joseph Kazikulima, stated that on 10th March 2015 purchased land from the 1st appellant at the tune of TZS 300,000/= three hundred thousand only and the same was documents. The purchase price was done in instalments. DW 2 cleared the land, erected a house with a room and sitting room and commenced living in the house. Later on in 2016, a dispute arose where the respondent claimed to have purchased the land but the 1st appellant refuted to have sold such land. It was the 1st appellant version before the Street Chairman that there was no land sold to the respondent. DW 2 tendered a sale agreement between the 1st appellant and 2nd appellant which was tendered, admitted, marked as Exhibit D.E.- 2 and read before the parties. DW 2 stated that information at the Street Chairman revealed that 1st appellant has never sold that land to anyone. DW 2 described that the land is measures 28 by 33 steps and the neighbours are Salum Kibwana on the West, Mama Wendo on the East, Salum Senyagwa on the North and Chami on the South. DW 2 reiterated he does not at all border the applicant and her son. It was DW 2’s evidence that he purchased the land and found all those neigbours existing 20 | P a g e save for Mama Wendo. DW 2 stated that in 2018/2019 the area was surveyed to formalize the ownership and all the persons were recognised though documents are yet to be issued. DW 3 was one John Steven Masaka, who testified that as the Chairman of Mtube Street in Nkuhungu stated that the 1st appellant is the owner of land since 1980s and that she sold land to 2nd and 3rd appellants witnessed by the Street Government office. The 2nd and 3rd appellants erected buildings and they peacefully live in their plots. The appellants are among the persons who were recognised in the formalization process of the land ownership in that area. It was DW 3’s evidence that he only heard later on that another person was claiming the land and had sued the appellants. DW 3 stated that he does not know the respondent as she never purchased the land nor visited the Street Government office. DW 3 is aware that 1st appellant sold the land to various persons and the Street Government office was involved except for sale with respondent which never happened. 21 | P a g e DW 3 stated that 1st appellant had sold the land to 21 persons and the land is located at Nkuhungu Broad acre. The total land in that area is measuring three and half (3½) acres. It was further DW 3’s evidence that he had been a Street Chairman since 1994 to 2022 when he testified and that all sales by the 1st appellant were witnessed by the Street Government office. The 1st appellant sold the land before the formalization process which happened in later years around 2020-2021. Both sales of land by the 1st appellant to 2nd and 3rd appellants were witnessed by the Street Government Office. DW 4 was Salum Kibwana stated that he purchased the land in 2008 measuring 40 by 40 steps and developed the land by erecting two bedroom and a sitting room house. It was later on came to his knowledge that respondent was claiming the land to belong to her. DW 4 tendered a receipt indicating that he paid for the survey during the formalization which was admitted and marked as Exhibit D.E. 2. DW 4 reiterated to have purchased the land and that he purchased the land from Suzan Fungafunga who had purchased before from the 1st 22 | P a g e appellant. DW 4 stated to have been handed over all the document of sale between the 1st appellant and Suzan Fungafunga and the same was done before the Street Government Office. Further, DW 4 informed that the sale was documented at the Street Government Chairman and that he obtained a loss report for the documents that were lost. The formalization has been done as the area is surveyed and the appellants were in the process of being allocated. DW 5 was one Tusane Angela Fungafunga testified that she purchased land from one Grace Sapila (1st appellant) and sold it to the 3rd respondent. The sale was concluded at the Street Chairman’s office and the purchase was in 2006 and sold it in 2008. The size was approximately an acre. According to DW 5, the land belonged to the 1st appellant as the Street Chairman confirmed before sale that 1st appellant was the owner. That was the total evidence of the appellants. 23 | P a g e The main question is whether there was proof of sale of land from the 1st appellant to the respondent. A thorough perusal of the available record reveals that there is no proof that the respondent purchased the disputed land from the 1st appellant. There are several headings that establish that the respondent failed to prove before trial Tribunal on the existence of valid sale agreement. First, aspect is on the legality of the sale of the land itself. Second, probative value of the evidence on record. Third, standard and burden of proof of the case. The land in question purported is surveyed land would entail that every disposition of right of occupancy including sale such disposition must be registered. Registration of disposition is mandatory under section 61 and 62 of the Land Act, Cap 113 R.E. 2019. To illustrate this point, section 62(2) of the Land Act is quoted in verbatim for easy of reference It states that: (2) No instrument effecting any disposition under this Act shall operate to sell or assign a right of occupancy or create, transfer or otherwise affect any right of occupancy, lease or mortgage until it has 24 | P a g e been registered in accordance with the laws relating to the registration of instruments affecting the land in respect of which the disposition has been made. It can be gathered from the above provision of the law that absence of registration of disposition invalidates any attempt to sell, transfer or assignment of the Right of Occupancy. Such incompleteness and ineffectual process does not change the status regarding ownership of land in question from the 1st appellant to the respondent. It is settled law that registration requirement for disposition, sale of right of occupancy inclusive, is covered in the Land Registration Act, Cap 334 R.E 2019. Section 41 of the Act provides as follows: 41.-(1) The disposition of land shall be registered by the Registrar. (2) An applicant for disposition of land shall submit to the Registrar all relevant documents accompanied by a prescribed fee. 25 | P a g e (3) When so registered, a disposition shall be effectual to create, transfer, vary or extinguish any estate or interest in any registered land. (4) Upon registration, the Registrar shall submit a notice accompanied by the relevant document to the Commissioner for Lands who shall enter in the register particulars relating to such change of ownership. As have noted, any disposition whether sale or transfer of the right of occupancy should comply with the legal requirements otherwise such disposition is regarded void and inoperative. Non-registration of the disposition of the right of occupancy makes the whole disposition inoperative. In the case of Registered Trustees of Holy Spirit Sisters T. vs January Kamili (Civil Appeal 193 of 2016) [2018] TZCA 32 (6 August 2018), page 19-20, the Court of Appeal stated that: There is, in this regard, a long line of authority to the effect that an oral and unapproved agreement for the 26 | P a g e disposition of land held under a Right of Occupancy such as the one relied upon by the respondents, is inoperative and of no effect. If we may just cite a few, in Patterson and another v Kanji (1956) E.A.C.A. 106, dealing with a similar regulation, the defunct Court of Appeal for Eastern Africa stated that one cannot seek "to enforce at law which he can only establish by relying on a transaction declared by law to be inoperative". Further, in the case of Idrissa Ramadhani Mbondera vs Allan Mbaruku and Another (Civil Appeal 176 of 2020) [2023] TZCA 204 (27 April 2023), at page 31, the Court of Appeal reiterated that: Moreover, it is worth noting from the evidence that, the purported sale agreement was not approved by the Commissioner for Lands and, the process of transferring land title as required in terms of section 41 of the Land Registration Act, Chapter 334 of the Revised Laws which is a prerequisite condition for registration of any interest in 27 | P a g e land and other land transactions was not followed. In the peculiar circumstances of this case which we find rather disquieting, saying, as one might get the feeling, that, perhaps the first respondent was completely not aware of all these and other requirements in real property transactions, would be to put it mildly. But all things considered, what is non-fictional, is the fact that, the omissions by the first respondent carry dire consequences which he may have to be advised to ultimately endure. At this juncture, I am certainly sure that the two aspects have been addressed lucidly that Exhibit A.E 1 /Exhibit P. 1 appears to be transfer deed than a Sale Agreement as per its contents. Also, there is non- compliance with the legal requirements on disposition of land as provided for in the Land Act, Cap 113 R.E. 2019 and the Land Registration Act, Cap 334 R.E. 2019 thus making the so-called Sale Agreement null and void. The consequence for non-compliance is to make it illogical for the trial 28 | P a g e Tribunal to find it as the basis of declaring the respondent as the owner of the disputed land. For purposes of clarity, we can consider the Exhibit A.E. 1/ Exhibit P.1 as a Sale Agreement. This would assist to address the question of validity of the same. According to the respondent, there existed a valid agreement capable of enforcement as the same falls in the first stage of the process of land disposition. Indeed, this Court is guided by the Court of Appeal directives on existence of the two staged process in the disposition of landed property. The first stage is contractual, and the second stage is actual disposition i.e. change of names. In the case Philipo Joseph Lukonde vs Faraji Ally Saidi (Civil Appeal 74 of 2019) [2020] TZCA 1779 (21 September 2020), pages 20-23, the Court stated that: We take any such deliberate breach of contracts very seriously. Once parties have duly entered into a contract, they must honour their obligations under that contract. Neither this Court, nor any other 29 | P a g e court in Tanzania for that matter, should allow deliberate breach of the sanctity of contract…This decision demarcates two distinct stages through which a parcel of registered land passes from a vendor to a purchaser. The first stage is contractual, where parties enter into private agreement over parcel of land earmarked for sale. The second stage is the more formal involving actual transfer and change of ownership. It is in the second stage when consent of the Commissioner for Lands is applied for before new titles change ownerships. The respondent’s submission is that trial Tribunal was correct legally to declare the respondent as the lawful and rightful owner of disputed plot. According to the respondent, Exhibit A.E.- 1/Exhibit P.1 is a contract of sale of the land that the respondent intended to enforce. The validity of the sale agreement (disposition) which is exhibit AE 1 comes into question. Was the agreement valid and enforceable under the law? 30 | P a g e The guidance on the validity of an agreement stems from the provision of section 10 of the Law of Contract Act, Cap 345 R.E. 2019. It provides that: 10. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void: Provided that, nothing herein contained shall affect any law in force, and not hereby expressly repealed or disapplied, by which any contract is required to be made in writing or in electronic form or in the presence of witnesses, or any law relating to the registration of documents (Emphasis added). There are few important aspects to note at this juncture in relation to this provision of the law of contract. First, it provides for elements of valid contract namely (a) free consent (b) competence of the parties (c) presence of lawful consideration and (d) lawful object. Second, it requires such agreement should not be declared by the law explicitly to be void. 31 | P a g e Third, the proviso has effect of not excluding the requirements of other laws relating to registration or those requiring the agreement to be in writing. The ingredients of a valid contract were fully demonstrated and articulated in the case of Amos Njile Lili vs Nyanza Cooperative Union (1994) Ltd & Others (Civil Appeal No. 126 of 2020) [2024] TZCA 13 (31 January 2024), pages 17-18, where the Court of Appeal illustratively held that: Taking into account the above contending positions, the underlying issue is whether the disputed contract is valid. To determine this, we are guided by the provision of section 10 of the Law of Contract Act which provides: "10. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object; and are not hereby expressly declared to be void: Provided that nothing herein contained shall affect any law in force, and not hereby expressly repealed or disapplied, by which any contract is required to be made in writing or in the 32 | P a g e presence of witnesses, or any law relating to the registration of documents." [emphasis added]. Indeed, section 10 of the Contract Act outlines the fact that free consent of parties competent to contract for a lawful consideration and object are essential components in establishing a valid contract. I shall hasten to say that if the so-called sale agreement is viewed in light of the disposition under the law relating to disposition of land, then there is no valid contract. This is because it violated the provisions of the sections 36-40 of the Land Act which declare that any disposition agreement in contravention of the requirement for approval of the Commissioner for Lands is inoperative and void. Similarly, sections 61 and 62 of the Land Act as well section 41, of the Land Registration Act, Cap 334 R.E. 2019 provide that effect of non-registration of the disposition renders the purported disposition/transfer inoperative. I am aware that on page 13 of the Judgment, the trial Tribunal’s Chairman cited section 64(1) of the Land Act, Cap 113 R.E. 2019 to have 33 | P a g e guided the Tribunal. That provision was relevant and correct only to limited extent. The trial Tribunal Chairman concentrated on the aspect of reducing the agreement into writing alone. That was categorically a very restrictive and narrow approach that led to an error on part of the trial Tribunal. That provision states that the contract should be in writing or there is a written memorandum of its terms meaning that apart from existence of the document the Court or Tribunal should ascertain terms of the said agreement. This provision of the law was the illustrated by the Court of Appeal in the case of Nicholaus Mwaipyana vs The Registered Trustees of Little Sisters of Jesus Tanzania (Civil Appeal No.276 of 2020) [2023] TZCA 17578 (30 August 2023), 16-17, the Court of Appeal stated that: It was submitted for the appellant that under section 64(1) of the Land Act, the respondent acquisition of title on the suit property in so far as it emanated from a purchase agreement, was only provable upon production of the respective purchase agreement. For clarity, we shall reproduce the relevant provision hereunder: "64(1) A 34 | P a g e contract for the disposition of a right of occupancy or any derivative right in it or mortgage is enforceable in a proceedings only if (a) the contract is in writing or there is a written memorandum of its terms; (b) the contract is in writing or the written memorandum is signed by the party against whom the contract is ought to be enforced." The above provision, in its clear and unambiguous words, does not provide for the way of proving ownership of a landed property but rather, for the manner and conditions under which a contract for purchase of land can be enforced. It would have been relevant perhaps if the respondent had instituted a suit against DW1 for specific performance of the sale agreement or for mandatory injunction compelling DW1 to perform any terms of the contract. It cannot apply in the case at hand where the claim is for vacant possession against a person not privy in the purchase agreement. 35 | P a g e According to the principle in foregoing case, Section 64(1) does not prove ownership but rather existence of the agreement that may be enforced. It is a step towards one acquiring ownership. In case the disposition is not approved by the Commissioner for Lands and not registered then the party to the sale agreement can only ask the assistance of the tribunal to enforce terms of the agreement alone but not to be declared the owner. Even if the Transfer of an Offer of Right of Occupancy (Exhibit P1/ Exhibit A.E. 1) is considered to be the purported sale agreement in the first stage of the disposition, yet it must fail the test of valid contract. Save for element of consideration which is shown to be TZS 2,000,000/= (Tanzanian Shillings two million) there is nothing on record either in oral testimonies or documentary evidence on what were the terms of the contract. The aspects as to when was the sale agreement concluded, how was the purchase price paid, when was the purchase price paid, what is the location and description of the land involved in the sale in terms of size, and other details including size of land and the tenure of the Granted 36 | P a g e Right of Occupancy, who are the neighbours to that land, who were the witnesses to the transactions and so on. The respondent claimed that sale agreement was reduced into writing. As such, it was expected that sale agreement must contain terms and conditions of the agreement. It is the terms of the agreement which are enforced by Tribunals/ Courts. Section 37 of the Law of Contract Act, Cap 345 R.E. 2019 is to the effect that parties should perform their respective promises. In absence of terms in the so-called Sale Agreement/ Transfer of An Offer of Right of Occupancy voids the same in law. Furthermore, there is nothing indicating that upon finding that the description of the sold land Plot No 102 Block E was not in existence, the respondent or his advocate communicated to the 1st appellant for changing the agreement. There is no such documentary evidence on record. Indeed, this voids the agreement as there was no consensus as idem between the parties to the alleged sale agreement. It only appears that parties agreed that plot that was being sold and purchased by the 37 | P a g e respondent was not other than Plot No 102 Block E Nkuhungu as stated in Exhibit P.1/ Exhibit A.E.-1. Absence of evidence that at a later stage parties agreed to change the land in question to Plot No 32 Block E Nkuhungu reinforces that there never existed any agreement to that effect in the first place. Lack of all these aspects in an agreement makes the purported sale agreement null and void. This is in accordance with the provision of section 29 of the Law of Contract Act, Cap 345 R.E. 2019. It states that “An agreement, the meaning of which is not certain, or capable of being made certain, is void.” The analysis by trial Tribunal’s Chairman on pages 13, 14 and 15 of the Judgment was erroneous. Though the provisions quoted were correct but the analysis fell short of the legal analysis. Simple question that the trial Tribunal’s Chairman ought to have put forward was what were the terms of the contract for which section 64(1) of the Land Act, Cap 113 R.E. 2019 and section 100(1) of the Evidence Act, Cap 6 R.E. 2019 would have been invoked to protect. As I pointed out, there is only one term that the 38 | P a g e purchase price is TZS 2,000,000/= without no more details. There is nothing to describe the location of the land in question nor any other relevant details on the terms of the agreement. The second aspect is on the probative value of the evidence tendered. This relates to the documentary exhibits. There are two Exhibits tendered in support of the respondent’s case. These were marked as Exhibit P. 1 collectively, which entailed three documents, namely: One, transfer of offer of the right of occupancy. Two, the letter from Municipal Director (Dodoma Municipal) dated 16th June 2014. Three, a note from Municipal Land Officer namely Lihweuli dated 18th June 2014. The second set is Exhibit A.E-1, which is the sale agreement/ transfer of offer of the right of occupancy. It should be noted at the outset that two documents forming Exhibit P.1. were irregularly and unlawful found its way in the proceedings of the trial Tribunal. The letter from the Municipal Director and Note Minute dated 16th June and 18th June 2014. The tendering of the same violated principles governing proceedings. First, both documents violated the law on 39 | P a g e pleadings. Second, they did not adhere to procedures for admission of documentary evidence. On a limb related to pleadings, it is vivid that the Amended Land Application No 09 of 2017 filed on 16th October 2017 has categorically stated list of documents annexed to form part of the application. Paragraph 8(b) of the Land Application lists the documents as follows: (a) a copy of the Title Deed (b) a copy of the application by personal legal representative (c) a copy of assent to bequeath (bequest) of offer of the Right of Occupancy (d) a copy of transfer of the Offer of the Right of Occupancy (e) a copy of the letter of administratrix of the estate of late DAUDI MNYIRIKA granted to AGNES SAPILA. Conspicuously, the two documents tendered as part of Exhibit P.1. collectively were not listed in the respondent herein own pleadings. There is no record as well on the proceedings that at any point in time did the respondent pray to submit list of additional documents to be relied upon. 40 | P a g e It is settled principle of law that parties are bound by their own pleadings. Treatment of the evidence that is in variance with pleaded facts was illustrated in the case of Barclays Bank T. Ltd vs Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020) (TANZLII), at page 11, the Court of Appeal stated 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 James Funke Ngwagilo v. Attorney General [2004] TLR 161. See also Lawrence Surumbu Tara v. The Hon. Attorney General and 2 Others, Civil Appeal No. 56 of 2012; and Charles Richard Kombe t/a Building v. Evarani Mtungi and 3 Others, Civil Appeal No. 38 of 2012 (both unreported). 41 | P a g e Further, the principle was reiterated in Equity Bank Tanzania Limited vs Ndume Ng'okorome Maswale T/A Ndume General Supply (Civil Appeal No. 443 of 2022) [2024] TZCA 1268 (12 December 2024) (TANZLII), at pages 15-16, the Court of Appeal stated that: But the law on pleadings is clear that a party is not permitted to lead evidence which is not in conformity with the pleadings. In the event it happens, as herein, the trial court was required to disregard such evidence for a reason that such evidence is inadmissible. The Court restated the position in the case of Maria Amandus Kavishe v. Norah Waziri Mzeru (supra) where the Court remarked: - 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 amendment being properly made. That no party should be allowed to depart from his pleadings by changing his case from which he had 42 | P a g e originally pleaded. Furthermore, the court itself is as bound by the pleadings of the parties as they are themselves. The principle in the above cited precedents is clear that parties are bound by their own pleadings. As such the parties must produce evidence that tally with pleadings and in case evidence produced is different from the pleaded facts that evidence must be ignored. Also, such varied evidence either oral or documentary is not admissible. It is pertinent to state at this juncture that all the evidence regarding a Note Minute and Municipal Director letter forming part of Exhibit P.1 collectively was inadmissible before the District Land and Housing Tribunal as such evidence was not part of the pleadings. The other limb on this aspect relates to tendering of the documentary evidence violated the law. In the cases of Jumanne Mondelo vs Republic (Criminal Appeal 10 of 2018) [2020] TZCA 1798 (6 October 2020); and Geophrey Jonathan @ Kitomari vs Republic 43 | P a g e (Criminal Appeal 237 of 2017) [2021] TZCA 17 (16 February 2021), the Court of Appeal emphasized that: It is trite principle that when a document is sought to be introduced in evidence three important functions must be performed by the court, clearing the document for admission, actual admission and finally, to ensure that the same is read out in court. Simply stated, clearance for admission entails laying grounds for the evidence to be admitted by the Court. This may include ensuring that the witness who tenders it is competent in form of author of the document, addressee, possessor, custodian owner; it must be original; and it must have been attached to the pleadings or included in the list of documents to be relied upon. In absence of these preliminary issues being stated before the witness attempts to tender the document made tendering of document face legal challenges. Also, reading of the admitted documentary exhibit should not be underestimated. It is crucial to inform the other party on contents of the document to allow proper defence against such 44 | P a g e documentary evidence in form of cross examination of the witness tendering the same and so on. Indeed, two main limbs of this aspect on probative value of the evidence were violated. The respondent did not introduce how she came into possession of the Note Minute and the Municipal Director that was not directed to her nor she was named in the said letter. Also, these documents were not read to the parties before the Tribunal. It is this Court considered and informed opinion that Exhibit A.E. -1 face the same challenge of irregularly being admitted. It is lucid from the record at page 18 and 19. The document was read to the parties before being admitted. Neither the appellants were afforded opportunity to object tendering of the same. It was thus not tendered in accordance with the established legal procedures relating to tendering of documentary exhibits. In fact, by failure of the trial Tribunal to allow the appellants to state whether they have an objection or otherwise denied the appellant a right to be heard on that particular documentary evidence. Thus, such admission of documentary evidence results into nullity of the documentary evidence itself. 45 | P a g e As a result, for the two reasons analysed above I shall proceed to accord no weight to these pieces of evidence contained in the Exhibit P.1 collectively for being violative of the law thus I hereby expunge the whole of Exhibit P.1 and Exhibit A.E. -1 from the record. Even if for argument sake, the Note Minute which had bearing to the plot of land in question is weak and it could not stand the test of authenticity. For clarity, the Note Minute from the Land Officer, states as follows: WAKILI YAHUSU MABADILIKO YA NAMBA PLOT 10 BK E KWENDA 32 BLOCK E NKUHUNGU Naomba ubadilishe namba ya Kiwanja kutoka 102 BKE kwenda Plot 32 Block E Nkuhungu Broad Area. Angalia Hati ya Short Term L.O. 130156 E. Lihweuli Afisa Ardhi 18/6/2014 The evidential value of this note is questionable for several reasons. First, the note is hand written and directed to an advocate who is not 46 | P a g e mentioned in the note either explicitly or implicitly by naming the law firm of such advocate. Second, it has no letter head to indicate that the same is official communication from the purported Capital Development Authority (CDA) or Municipal Director’s office. Third, no any witness from the Dodoma City Council which took over the functions of CDA including assets and liabilities was called to testify before the Tribunal to establish that indeed such communication was ever made to the respondent herein or her advocate who purportedly witnessed the sale of the land. Four, the respondent who tendered has not stated at all if she is the advocate to whom the note Minute was directed. Thus, authenticity of the note is questionable and it ought to have not accorded any evidential weight in the circumstances. Third aspect is on burden and standard of proof. Section 3(2) (b) of the Evidence Act provides that standard of proof in civil case is on the balance of probability and the burden of proof vests on the person who alleges existence of a particular fact. 47 | P a g e It is settled principle that a party with heavier evidence than the other party deserves the decision of the Court. For instance, in the case of Leonard Dominic Rubuye t/a Rubuye Agrochemical Supplies vs Yara Tanzania Limited (Civil Appeal No. 219 of 2018) [2022] TZCA 419 (13 July 2022) (TANZLII), at page 22, the Court of Appeal of Tanzania lucidly stated that: We begin by acknowledging the well settled position that the onus of proving existence of any fact lies on the party asserting its existence and in civil cases proof is at balance of probabilities. That is in accordance with the provisions of sections 110 and 111 of the Law of Evidence Act [CAP 6 R. E. 2019]. See the case of Attorney General and two Others v Eligi Edward Massawe and Others, Civil Appeal No. 86 of 2002 (unreported). Of course, this is construed to mean that the one with heavier or stronger evidence will have the case decided in his favour. 48 | P a g e The respondent is the one who initiated the Land Application No 09 of 2017 praying to be declared as the lawful and rightful owner of the disputed land on pretext of the existence of sale agreement between the 1st appellant and respondent. It was incumbent upon the respondent to prove before the District Land and Housing Tribunal that such sale agreement existed. Having expunged the Exhibits P.1 collectively and Exhibit A.E. -1, the remaining oral evidence of the respondent cannot suffice to prove the case of ownership of land against the appellants. The evidence is so weak, contradictory and inconsistent. PW 1 stated that the sale transaction was concluded a day before 28th March 2011 when the parties approached late advocate Joshua Oguda. PW 2 stated that all the transactions were concluded at the advocate’s office on 28th March 2011 and the late advocate Joshua Oguda witnessed the payment of the purchase price. This contradiction between PW 1 and PW 2 leaves a lot to be desired. In fact, evidence of PW 2 contradicts the explicit evidence of PW 1 that when the purchase price was paid to the 1st appellant the late advocate Joshua Ogunda was not there. 49 | P a g e It is on record that PW 1 stated that there were two witnesses on the party of the respondent who witnessed the sale transactions including payment of TZS 2,000,000/= by the respondent to 1st appellant. Neither of the two witnesses was called to testify to have witnessed the transaction. It was at this juncture that trial Tribunal ought to have considered the respondent’s evidence weak thus lacking truthfulness. Indeed, such finding by the trial Tribunal on the respondent’s evidence would be similar to entering adverse inference against the respondent if this matter was of criminal in nature. There was no reason whatsoever adduced before the trial Tribunal for the respondent’s failure to call these material witnesses who could have enlightened this court of issues that are not explained including the terms of the agreement and modalities of payment if any, size of the land sold, boundaries etc as the duo are said to have been at the place where the land in dispute is located. In the case of Maria Amandus Kavishe vs Nora Waziri Mzeru and Another (Civil Appeal 365 of 2019 [2023] TZCA 31 (20 February 2023) (TANZLII), at pages 20-21, the Court of Appeal held that: 50 | P a g e It is also apparent at pages 173 to 174 of the record of appeal that, when the appellant tendered exhibit P1, she testified that it was issued by CW1 and witnessed by Said Mohamed @ Mtimkavu and Said Yusufu Johora but she did not summon the said people to testify at the trial to prove that fact and no reasons were explained for that failure. Such failure, in our view, entitles the trial court to draw an adverse inference against the appellant. In the instant appeal, the witnesses of the respondent who attended the conclusion of the transaction on material date were quite important to adduce evidence before the trial Tribunal on whether actually the alleged sale agreement occurred at all. These would have informed the Tribunal on all important aspects that are missing from the evidence of the respondent. The list would also entail the relatives of the respondent who contributed to TZS 2,000,000/= for purchase price. As the necessary evidence is missing on establishing existence of valid agreement and its terms it is only those person PW 1 stated that they were present at the scene who would have shed some lights on those aspects. 51 | P a g e In the case of Jackson s/o Hakiel Msuya vs Republic (Criminal Appeal No. 138 of 2021) [2024] TZCA 430 (11 June 2024), at pages 9-10, the Court of Appeal stated that: In our recent decision in George Jonas Lesilwa v. Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (16 April 2024) the definition of "material witness" was also well described as: a witness who can testify about matters having some logical connection with the consequential facts especially if few others, if any, know about these matters, (See Black's Law Dictionary 8th Ed. page 1634). Generally, the information the material witness possesses has a strong probative value and, very few, if any witness, possess the same information. It should be needless to say, at this juncture that, probative value is the probability of evidence to reach its proof purpose of the fact in issue." A material witness was also defined in the case of Wachawaseme John v. Republic, Criminal Appeal No, 468 of 2022, (unreported) where the Court held: "In law, 52 | P a g e generally a material witness is a witness whose evidence is relevant and consequential to the substantive legal proceeding." Having observed that trial Tribunal ought to have considered the respondent/ applicant’s evidence to have been marred with weakness that touched the root of the case, it was crucial for the Tribunal to find against the respondent in this appeal (the applicant before the Tribunal) in the circumstances. This principle was illustratively determined in the case of Simon Mugejwa & Another vs Ibrahim s. Magembe (Civil Appeal No.123 of 2020) [2023] TZCA 17440 (20 July 2023) (TANZLII), at pages 20-21, the Court of Appeal stated that: We are, therefore of the decided view that, save for misapplication of the word adverse inference, the learned trial judge was right to consider the testimony of Magala Mugejwa to be crucial and cannot be left out of the picture. The appellants' failure to call him as their witness and without assigning acceptable reasons adversely affected their case, that is to say, casted 53 | P a g e doubt on the truthfulness of their claim over the disputed farm. That omission, we hold, like the learned trial judge impliedly held, weakened the appellants' case. It can be noted that on pages 15 to 23 inclusive, the trial Tribunal discounted the evidence of the appellants herein in details and at lengthy. These were that failure by the 1st appellant to report about forgery of her signatures in the documents of Transfer of an Offer of Right of Occupancy Exhibit A.E-1/ Exhibit P.1. Also, the difference in evidence on whether formalization was in 2009 or 2020-2021 as per evidence of DW 3. Further, the tendering of receipts does not establish ownership of land. Indeed, the trial Tribunal focused on trivial and irrelevant matters to address the issues before it. Such consideration of trivial and irrelevant aspects had nothing to address the issue before the Tribunal which was whether or not the respondent purchased the disputed land described as Plot Number 32 Block E Nkuhungu. The framing of the issue in this manner had strictly imposed the burden of proof on the respondent alone. It was the sole duty of the 54 | P a g e respondent, as the one who initiated the land application to prove that he purchased such land lawfully and legally. The respondent ought to have stated on all detailed terms of agreement including but not limited to the dates of the transaction, full description of the land including the size, neighbourhood, location, purchase price, mode of payment, vacant possession and hand over of the land, witnesses of the sale transaction and so on. Indeed, focusing and capitalizing on trivial issues in the appellants’ evidence distracted the trial Tribunal and led to serious error. I am guided by a principle in the case of Maria Amandus Kavishe vs Nora Waziri Mzeru and Another (Civil Appeal 365 of 2019 [2023] TZCA 31 (20 February 2023) (TANZLII), at pages 15-16, the Court illustratively stated 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 of proof is not diluted on account of the weakness of the opposite party's case. We seek inspiration from the extract in Sarkar's Laws of Evidence, 18th Edition M.C. Sarkar, S.C. Sarkar and 55 | P a g e P.C. Sarkar, published by LexisNexis and cited in Paulina Samson Ndawavya v. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 (unreported), that: "...the burden of proving a fact rest on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is usually incapable of proof. It is ancient rule founded on consideration of good sense and should not be departed from without strong reason…Until such burden is discharged the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such a conclusion, he cannot proceed on the basis of weakness of the other party... "[Emphasis added]. The 1st appellant has denied throughout that she never sold the disputed land to the respondent. It is was incumbent for the respondent herein to rally sufficient evidence to establish that actually the sale 56 | P a g e agreement existed. However, the respondent failed to do so within the standard required by the law. On the other hand, there was consistent theme on the 1st appellant’s conduct in sale of the land that every transaction would be witnessed by the Street/ Mtaa Chairperson except the alleged transaction claimed by the respondent. The Tribunal ought to have considered that there were stated more than ten transactions of sale of land to different persons at that same locality involving the 1st appellant. All of them were witnessed by the leadership of the locality. On balance of probability, the evidence of the respondent was in all fairness the weakest evidence on record. Allegations levelled by the respondent that such land was surveyed and registered which were very much considered by the trial Tribunal to invoke applicability of section 64(1) of the Land Act fell short to prove ownership of the land by the respondent. In the circumstances, the respondent was supposed to produce and tender Certificate of Title in her name to prove that she was the registered owner whose interests are paramountcy in law. Ownership of such land is not proved by agreement but Certificate of Title as per 57 | P a g e provisions of Section 62(2) of the Land Act, Cap 113 R.E. 2019 and section 41 of the Land Registration Act, Cap 334 R.E. 2019. In the case of Athumani Amiri vs Hamza Amiri & Another (Civil Appeal 8 of 2020) [2022] TZCA 772 (6 December 2022) (TANZLII), at page 14, the Court of Appeal illustratively stated that: It is settled that the certificate of title is conclusive evidence to prove ownership over the land unless proved otherwise. In the instant appeal, the respondent failed to produce any certificate of title over the land she alleged to be surveyed and registered, nor evidence that alleged transfer/disposition from the estate of late Daudi Mnyirika to the respondent was approved by the Commissioner for Lands and registered by the Registrar of Titles made the whole claim on declaration of ownership untenable and unavailable to the respondent. The reasons are simple. Ownership of registered land is proved by certificate of title which was never tendered. The only remedy that the respondent could have been afforded was to request the trial Tribunal to enforce terms of the agreement once the 58 | P a g e same was proved. However, this Court has demonstrated at lengthy that there was no such agreement in existence thus there was nothing to enforce by the respondent against any of the appellants in this case. At this juncture, it is with certainty that 3rd,4th and 5th grounds of appeal have merits and this Court has no hesitation to uphold them. In my humble view, these three grounds of appeal suffice to determine the appeal. It is my considered opinion that the 1st ground and the 2nd grounds on the question of the assessors and visit of the locus in quo have no merits to warrant analysis. For instance, on assessors, it is on record that assessors participated and on 4th September 2023 the trial Tribunal scheduled the reading of the assessors’ opinion to be on 19th September 2023. It is on record that assessors’ opinion was filed and on 19 th September as the scheduled date for reading of assessors’ opinion, the same was read before the parties. In the upshot, the appeal is meritorious as I have indicated that three grounds of appeal namely the 3rd, 4th and 5th grounds demonstrated that the respondent failed miserably to prove the case against the appellant 59 | P a g e before the trial Tribunal. It was unfortunately that trial Tribunal acted in total disregard of the established legal principles on proof of ownership of the registered land, admissibility of documentary evidence as well as who had a duty to prove. In the circumstances of the appeal, it is pertinent that the Judgment of the District Land and Housing Tribunal for Dodoma in Land Application No 09 of 2017 be quashed and the decree thereto is set aside in its totality. This Court replaces it with the judgment against the respondent in this appeal. Consequently, this Court entered judgment and decree in favour of the appellants to the extent that: (1) That, the Land Application No 09 of 2017 before the District Land and Housing Tribunal for Dodoma was not proved thus the same is dismissed for lack of any cogent merits; (2) That the respondent, one Khadija Abdulmajid Geyash has never bought any portion of the disputed land and she has no claim of right whatsoever over the land in question. Simply, the respondent is declared that she is not the owner of the disputed land; 60 | P a g e (3) The occupation of land by the appellants in the disputed land is lawful; (4) That the respondent, is consequently restrained permanently in person or acting through other persons, agents, or employees from interfering with the land in question. (5) The appellants are entitled to costs of the case at the Tribunal and before this Court. It is so ordered. DATED at DODOMA this 17th day of February 2025. E.E. LONGOPA JUDGE 17/02/ 2025. 61 | P a g e