lut

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

SUB REGISTRY OF TABORA

AT TABORA LAND APPEAL NO 7052 OF 2024 (Arising from the Decision of the District Land and Housing Tribunal of Tabora in Land Application No. 31 of2022) LUCAS LUTAMLA ............ APPELLANT

VERSUS SHEILA GABRIEL........................... RESPONDENT Last order: 22/10/2024 Judgement date: 27/02/2025

JUDGEMENT MANGO, J The Appellant and the Respondent own pieces of land at Miswaki Village, Uyui district within Tabora region. The Appellant's land borders the Respondent's land. The Appellant instituted Land Application No. 31 of 2022 before the District Land and Housing Tribunal for Tabora alleging that the Respondent has trespassed into his land by 3 metres the allegation which was vehemently denied by the Respondent. He prayed for the following orders: - 1 i. Declaration that the Respondent has trespassed into the Appellants land ii. Vacant possession of the disputed piece of land iii. General damages at Tshs 5,000,000/- iv. Costs and any other orders that the tribunal shall deem proper to grant After full trial, the tribunal dismissed the application. Aggrieved by the decision of the Trial Tribunal the Appellant preferred the appeal at hand on five grounds which are hereby reproduced as follows: 1. That Hon. Chairman erred in law and facts when he dismissed the Appellant's application against the weight of evidence which was weightier in favour of the Appellant than Respondent 2. That Hon. Chairman's assessment, analysis and evaluation of evidence on record was prejudicial to the Appellant and coupled with double standards against the Appellant contrary to the interests of justice and the duties of an impartial adjudicator 3. That Hon. Chairman erred in law and facts in

his decision relying on extraneous matters 4. That Hon. Chairman erred in law and facts in declaring the Respondent the lawful owner of the disputed land contrary to the pleadings and in absence of such a prayer from the Respondent 5. That Hon. Chairman erred in law and facts when he rejected the Appellant's evidence and discredit the Appellant's evidence against the interest of justice 2 On 22nd October 2024 when the matter was called for hearing, the Appellant was represented by Advocate Kelvin Kayaga while the Respondent appeared in person and in formed the Court that she will argue the appeal by herself. Before commencement of hearing, the Appellant's advocate prayed to add another ground of appeal which reads; "That the decision and proceedings of the tribunal are fatally defective as, exhibit Pl, a certificate from Ward Tribunal was improperly admitted." The prayer was granted and the added ground of appeal was numbered as ground No.

6. In his submission in support of the Appeal, advocate Kayaga started with the sixth ground of appeal. He submitted that, Exhibit Pl was tendered as evidence before the Tribunal however, Court record indicates that the document was not read after it was admitted by the tribunal. He argued that, it is trite law that, recorded proceedings of the Court reflect what transpired before the Court and cannot be impeached by personal narration or arguments. He argued further that, such failure to indicate that the document was read, means the document was not read after it was admitted. It also makes the Tribunal to have acted without jurisdiction as it determined a dispute which was never mediated before the Ward Tribunal contrary to mandatory legal requirements. He referred the Court to the case of Bulugu Mzungu Vs Republic Crim. Appeal No. 39 of 2028 Court of Appeal of Tanzania at Shinyanga in which the Court held that, a document which was not read during trial is liable to be expunged from record. 3 He argued further that, the document which is liable to be expunged from record of this matter, is a certificate from the Ward Tribunal declaring its failure to mediate the dispute. The document is the one which gives the tribunal jurisdiction to determine the dispute. The certificate is required to be part of Court record. By expunging the same, the Tribunal will be considered to have

determined the matter without being clothed with jurisdiction. He cited the case of Japan International Agency vs Khaki Complex Ltd [2006] TLR 343, Patrick William Mabugo vs Lilian Peter Kitali Crim Appeal No. 41 of 2019 Court of Appeal of Tanzania at Mwanza and Rvs MT 29887 WO II Komba Bustav [2012] TLR 359 at 361 to back up his arguments. The learned advocate argued the first, third and fifth grounds of appeal collectively. He gave a brief factual background of the matter that, the dispute between the Appellant and the Respondent concern the issue of boundaries between their respective pieces of land. He submitted that, the Appellant claimed that the Respondent trespassed into her land. According to him, the Appellant summoned reliable witnesses to prove the boundaries of the two pieces of land. He summoned the previous owner of the plot owned by him who testified as PW2. He also summoned the previous owner of the plot which is now owned by the Respondent who testified as PW3. He highlighted that, the two witnesses, testified to the effect that, the boundary of the two plots is the edge of the house base of the Respondent's house. PW3 was the person who constructed the base of the Respondent's house. The learned advocate is of the opinion that, with such evidence from 4 the former owners of the two plots makes the Appellants evidence to be more reliable than that of the

Respondent. He argued further that, the Appellants evidence is born by the Appellant's pleadings before the Tribunal while the Respondent's evidence was not born by her pleadings. He argued that, evidence which is not borne by pleadings ought to have been disregarded by the tribunal. He wonders why did the trial Chairman ruled in favour of the Respondent despite such reliable evidence produced by the Appellant over that produced by the Respondent. He cited the case of Richard Kigaraba vs Jonas Laurent and 2 others Civil Appeal No. 377 of 2019 CAT at DSM@22-24 to cement his arguments. He submitted further that, the Respondent's testimony was full of contradictions which were not cleared. He pointed out the alleged contradictions in the evidence adduced by the Respondent to be based on the boundary mark and persons who witnessed the sale of the land between the Respondent and his vendor. He explained that, the Respondent alleges that the boundary between the two plots was cassava trees and that among the persons who were present at the time she purchased the land in dispute was Mzee Paji. Her testimony seriously contradicted by that of PW2 and PW3 who testified clearly that the boundary of the two plots is the Respondent's house base, house base of the Respondent's building. He added that, since PW2 and PW3 are the former owners of the Appellant's and the Respondent's plots

respectively, their testimony regarding the boundary of the two plots is more reliable than testimonies of other witnesses. On the alleged presence of Mzee Paji at the time the Respondent purchased her Plot, Appellant's advocate submitted that, the said Mzee Paji testified as 5 DW4 during trial and he has a different narration. In his testimony, DW4 denied to be present at the time the Respondent purchased her land. The same applies to allegations that the Appellant was present at the time the Respondent purchased her land and he was actually the Respondent's witness in the sale agreement. In this, the Appellant denied to have been present at the time the Respondent purchased her land. Moreover, even DW2 and DW3 stated clearly that, the Appellant did not sign the sale agreement between the Respondent and her vendor. The Appellant's advocate also highlighted the issue of failure to produce sale agreement by the Respondent. He argued that, the agreement would have established the boundary the two pieces of land and who witnessed the same. He concluded that, failure to tender the sale agreement makes contradictions in the Respondent's evidence unaddressed thus, making the Appellant's evidence to weigh more than that of the Respondent. On the second ground of appeal, the learned advocate challenged the manner the Trial tribunal evaluated evidence adduced by the parties

during trial. According to him, the tribunal had double standards as it was allegedly quick to pick minor contradictions in Appellant's evidence and use the same against him while leaving the contradictions in Respondent's evidence unaddressed. The Appellant's advocate highlighted what he considers to be minor contradictions in the Appellant's case which was relied upon by the tribunal in dismissing the application. He stated that, the said minor contradictions regard the boundary of the two pieces of land as testified by PW3. He submitted that, PW3 stated during examination in chief that, the boundary 6 between the two plots was the Respondent's house base. During cross examination he stated that the boundary was'mibono't'ce.os, a peculiar type of cassava tree which its roots are not edible. During re-examination he insisted that the boundary was the base of the Respondent's building. He argued that, the tribunal picked the statement by PW3 during cross examination that the boundary was 'mibono' trees and considered the same to have contradicted the Appellant's testimony. He argued further that, the tribunal relied on such minor contradiction which was actually cleared during re-examination of the witness to dismiss the Appellants case. The learned advocate submitted on what he considered to be contradictions in Respondent's case which were not considered by the tribunal on

the same manner the tribunal did to the contradictions in Appellant's case. In this, he mentioned the contradictions on the persons who were present at the time the Respondent purchased her land, the allegations that the Appellant signed the Respondent's sale agreement as her witness and failure of the Respondent to produce her sale agreement to establish her allegations. The learned advocate concluded that, had the trial tribunal employed equal energy in analyzing Respondent's evidence as it did to the Appellant's evidence, it would have reached into a different decision. He added that, with such unequal analysis of evidence tendered during trial, the tribunal did not determine the matter with impartiality. He cited the case of Mohamed Said Matula vs R [1995] TLR to back up his arguments On the 4th ground of appeal, the Appellant's advocate challenged the decision of the tribunal declaring the Respondent to be the lawful owner of the disputed part of the land in absence of a counter claim by the 7 Respondent to that effect. He argued that, the tribunal declared the Respondent to be the lawful owner of the land in dispute, a remedy which was prayed for by the Respondent. He reminded the Court that, it is trite law that, parties are bound by their pleadings and so do the Court. Thus, the Tribunal ought to have refrained from granting reliefs which were not prayed by the

Respondent. He cited the case of Mary Sivanus Qorro vs Edith Donald Kweka [2019] TLR 434 at 442 to buttress his arguments. In her reply submission, the Respondent adopted her reply to petition of appeal to form part of her submission. On the alleged failure to read exhibit Pl during trial, she argued that, the document was read after it was admitted by the tribunal. On the issue of weight of evidence between her and the Appellant, she submitted that her evidence was indeed heavier than that produced by the Appellant. The Respondent believes that her evidence weighs more than the Appellant's because she summoned local government leaders who witnesses the sale of land to her by Makoe Sagamba. She added that, the Appellant agreed before the tribunal that he was present at the time she purchased her land. With that, she concluded that the tribunal correctly ruled in her favour as her evidence weighs more than that of the Appellant. On the alleged contradictions in her evidence and the issue of adducing evidence that is not born by her pleadings, she submitted that, her evidence was born by the pleadings and the tribunal acted fairly by considering testimonies from all parties equally. 8 In his brief rejoinder, the Appellant's advocate reiterated his submission in chief and insisted that the Appellant was not present at the time the Respondent purchased her land and he has never

admitted to be present at the time the Respondent purchased her land. I have considered submissions by both parties and Court record. I will start with the last ground of appeal which was added by the Appellant's advocate on the date the matter was scheduled for hearing. As correctly put by the learned advocate, Court record should speak by itself. My perusal of Court record revealed that the document which was admitted as Exhibit Pl was read before the Court. It is well settled that, the purpose of reading the document after its admission as evidence is to make the party against whom the document is tendered to understand its contents so as to prepare his defence if any. At the time the document was tendered as evidence, the Tribunal recorded as follows; "Nyaraka inapokelewa kama kielelezo Pl cheti Kielelezo Pl) kinasema Baraza la kata Hmeshindwa kutatua mgogoro na hivyo ku/etwa hapa." The statement may be literally translated as follows; The document is admitted as Exhibit Pl it is a certificate of the tribunal which indicates that the Ward Tribunal has failed to resolve the dispute and thus, the dispute has been forwarded to this Tribunal. With such endorsement, in my view, the document was read and all parties before the tribunal understood the contents of the document that was admitted as Exhibit Pl. It should be noted that, reading of the document after its admission is

not proved by only recording in the proceedings that 9 the document was read but the same can also be established by recorded explanations by the court as to the contents of the document so admitted. In that regard, I find the document, exhibit Pl was read after it was admitted. On the alleged contradictions in the evidence adduced by the parties, Court record establishes that evidence by all parties in this matter had some contradictions. The only issue is whether the contradictions have any effects to the roots of the case. Since the Appellant is not satisfied with the manner the trial Court evaluated evidence on record I find it necessary to re-evaluate evidence on record as the first appellate Court has jurisdiction to re-evaluate evidence produced during trial and reach to its own decision. The case at hand was instituted by the Appellant thus, the Appellant was duty bound to prove all facts that he alleged to exists. The dispute between the Appellant and the Respondent as reflected in the pleadings filed before the trial tribunal is a boundary between their pieces of land located. In that regard, the Appellant was duty bound to prove the boundaries of his land and to prove also that the Respondent has trespassed into his land. Aside from himself, the Appellant had two witnesses, his vendor and the previous owner of the Respondent's land. The Appellant testified expressly

that the boundary between his land and that of the Respondent is the Respondent's house base. He did not dispute the existence of cassava trees in the area but he testified to the effect that, the said cassava trees are not a boundary mark rather, they were cultivated within his land. A similar testimony was given by his vendor, PW2 Christina Daudi, PW2. However PW2 stated that, before constructions that were made 10 in the Respondent's plot, the boundary mark between the two plots was cassava trees. Although she later said the cassava trees were planted in her land which is now the Appellant's land, she still maintained the fact that the boundary between her plot and that of Mama Yusuph is cassava trees. According to her testimony, mama Yusuph's land is behind the Appellant's land. PW2 stated further that, the cassava trees that were used as a boundary mark between the Appellant's and the Respondent's land, were in a straight line with the Respondent's house base. Her testimony leaves the issue of boundary between the Appellant's land and the Respondent's land uncertain. I hold so because, if the boundary mark between her land, now the Appellant's land, and Mama Yusuphu's land is cassava trees and the boundary mark between the Appellant's land and that of the Respondent was previously cassava trees why does she claim that the boundary is the Respondent's house base. It should

be noted that, the cassava trees that are alleged to be a boundary mark between the two plots by the Respondent were three meters from the Respondent's house base. If PW2's testimony was to be relied upon, clear evidence ought to have been produced to establish when the previous cassava trees that were used as a boundary mark were uprooted. Unfortunately, no evidence to that effect was ever adduced before the tribunal. The only available evidence regarding uprooting of the cassava trees came from the Respondent. According to her, the cassava trees which were used as a boundary mark were uprooted by the Appellant. As correctly noted by the Trial Magistrate, the Appellant has not cross examined the Respondent 11 on the issue of uprooting the cassava trees which were allegedly planted as a boundary mark between the two plots. I had time to read the testimony of PW3, Ngwelu Mange, who happened to own the Respondent's land. I noted that, he is not in good terms with the Respondent since he alleges that, the Respondent has trespassed into his land. Thus, his testimony against the Respondent will be considered with caution. On the issue of boundary between the two plots PW3 stated that, for the area that the building was constructed, the boundary was the building base but at the part of the land where no building was constructed the boundary was cassava trees which planted in such a

manner that, they make a straight line with the base of the Respondent's building. The issue of having cassava trees as a boundary between the Appellant's and the Respondent's plot appears in the testimony of the Respondent, DW2 Joseph Kija and DW3 James Marko Nchangwa former hamlet chairperson of the area. DW2 and DW3 testified to the effect that, they were present when the Respondent purchased her land and that, the boundary between the two plots were cassava trees. PW3 added that, the place where the Respondent constructed her wall is correct as that was the place where the cassava trees were planted. The only contradictions that I found in the Respondent's case is presence of one Pagi Isolo and the Appellant at the time she purchased her land. Pagi Isolo testified as DW4 and denied to have been present at the time the Respondent purchased her land. The Appellant also disputed to be present 12 during the transaction and to be Respondent's witness. It is my considered view that, the contradictions do not go to the root of the case. The main issue in this appeal as it was before the trial Court is the boundary between the two plots. DW4 merely denied to be present at the time the Respondent purchased her land but he stated that, the boundary between the two plots were the cassava trees and that, the Respondent used to cultivate her land up to where the cassava trees were. He

added that, after the cassava trees were uprooted, Social welfare officers visited the disputed land trying to resolve boundary disputes that arose between the Appellant and the Respondent. It is my considered view that, presence or absence of DW4 at the time the Respondent purchased her land is not of utmost important in determining the boundary issue. Regard should also be taken to the manner the persons who were present at the time the Respondent purchased her land were mentioned by witnesses in this matter. They had no document which recorded the names of the persons who were present at the time the Respondent purchased her land. The names came from their memory of an incident that took place in the year 2OO9.Thus contradictions as to who was present and who did what, should not be given much weight unless, it goes to the root of the case. The same applies to the presence of the Appellant and allegations that he acted as a witness to the sale transaction between the Respondent and her vendor. I agree with the Appellant's advocate that had the Respondent tendered her sale agreement, the issue of presence or absence of the Appellant during the sale transaction would have been verified. However, 13 the issue between parties to this appeal is not ownership of their respective pieces of land, rather it is the boundary between the two pieces of land. Again, presence or absence of

the Appellant at the time the Respondent purchased her land will not prove or disprove anything regarding boundaries of the two pieces of land. As I have stated in the previous paras of this judgement, he who alleges must prove as required by section 110 of the Evidence Act, [Cap.6. R.E 2022]. Thus, the Appellant who alleged that the Respondent has trespassed into his land ought to have proved on balance of probabilities that the Respondent did so. In my view, it was the Appellant who was required to tender his sale agreement to prove the size of his land at the time he purchased the same. The agreement would have established the boundaries of the plot and assist the Court in determining the matter. In absence of the agreement and with the available evidence on record which all suggests that the boundary between the two plots were cassava trees as alleged by the Respondent, I find the Appellant to have failed to establish his claims on the required standard. In that regard I find the trial Court to have correctly dismissed the Appellant's application. On the issue of declaring the Respondent to be the lawful owner of the suit land, I agree with the Appellant's advocate that, the tribunal ought to have ended with dismissing the application. Declaring the Respondent to be the lawful owner of the disputed land is contrary to the well-established principle that parties and the

Court are all bound by pleadings. Despite that, I noted that such declaration eminates from the first issue which was drawn for determination by the tribunal assisted by the parties. 14 The issue reads, who is the lawful owner of the disputed land. In determination of this issue the tribunal was moved to determine who between the Respondent and the Appellant is the lawful owner of the disputed land. Had the first issue being what is the boundary between the two plots, the tribunal would have ended with determining the boundary and whether the Respondent has trespassed into the Appellants land. Moreover, since the issue was all about the boundary between the two plots, by dismissing the Appellants application, it technically mean the disputed part of the land remains in the hands of the Respondent. Even if I will set aside such declaration as I hereby do, it will not change the fact that by dismissing the Appellants appeal, the disputed part of the land will remain in the hands of the Respondent. In upshot the appeal is dismissed. Given the fact that parties are neighbours and their good relationship is vital for their welfare, I do not grant costs. Dated at Tabora this 27th day of February 2025 Z.D.MANGO

JUDGE 15