MATHIAS JOHN MUSHI VS FRANSISCA JOHN KISAMBU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND APPEAL NO. 5102 OF 2024 (Originating from Land Application No. 28 of 2012 of the District Land and Housing Tribunal for Moshi at Moshi) MATHIAS JOHN MUSHI ........……………………........... APPELLANT VERSUS FRANSISCA JOHN KISAMBU ….............................. RESPONDENT JUDGMENT 19/09/2024 & 16/10/2024 SIMFUKWE, J. Before the District Land and Housing Tribunal for Moshi at Moshi (the trial tribunal), the appellant instituted a suit against the respondent. The appellant alleged to be the lawful owner of the land measuring 31 paces South, 76 paces North-East and 60 paces West, situated at Shirimatunda Ward, within Moshi Municipality in Kilimanjaro Region. The appellant contended that he acquired the suit land from one Kilamseni Madekenya 1 after Kilamseni Madekenya Mushi had failed to repay a loan amounting to TZS thirty thousand (30,000). Thus, he transferred the said land to him in 1984. The appellant tendered the agreement titled "HATI YA MAKABIDHIANO YA KIWANJA TAR 4-2-84," which was admitted in court as Exhibit P1. He continued to cultivate the land until 2012, when the respondent trespassed on it. In support of his case, the appellant called two witnesses. On the other hand, in her Written Statement of Defence (WSD) and testimony, the respondent denied the appellant's claims. She said that the suit land belonged to her and her late husband, John Kisambu. Regarding how the respondent came to own the suit land, she testified that they acquired the suit land from Shirimatunda Village. The respondent faulted the appellant as the trespasser. She called two witnesses to corroborate her story. After a thorough evaluation of evidence, the trial tribunal found that the suit land belonged to the respondent and that the appellant was a trespasser. Aggrieved by the trial Tribunal’s decision, the appellant preferred the instant appeal based on the following grounds: 1. That the Tribunal grossly erred in law and fact in holding that the Respondent is the lawful owner of the suit land. 2 2. ⁠That the Tribunal grossly erred in law and fact in failing to properly evaluate the evidence adduced at the trial and instead chose to gloss over it to justify the decision reached. At the hearing of the appeal, the appellant was represented by Mr. Martin Kilasara, learned counsel, while the respondent was represented by Mr. Gabriel Shayo, learned counsel. The matter was heard by filing Written submissions. Mr. Kilasara opted to argue the two grounds of appeal jointly. The learned counsel challenged the trial tribunal's decision, which declared the respondent as the lawful owner of the suit land. He argued that there was insufficient evidence, which was not properly analysed to support such a conclusion. The learned advocate explained that, based on the evidence on record, the appellant clearly testified that the suit land is located at Shirimatunda Village within Moshi Municipality. The land measures 31 by 76 by 60. It is bordered by a village road to the West, Boniface Chua to the South, Pantaleo Mmasi to the North-East and has a triangular shape. The appellant, at pages 14 to 16 of the proceedings, testified that he acquired ownership of the suit land in 1984 from Kilamseni Madekenya Mushi. He 3 tendered an agreement dated 04/02/1984, to prove the transaction. It was admitted as Exhibit P1 without objection. The appellant testified further that, soon after acquiring the land, he developed it by fencing it, planted several trees and has enjoyed continuous, quiet possession. That he had used the land for over twenty years, until 2012, when the dispute arose following the respondent's trespass. Mr. Kilasara elaborated further that the respondent's husband, the late John Kisambu, was one of the witnesses to the said agreement (exhibit P1) and had duly endorsed it as the second witness. The respondent’s husband never claimed any interest in the property during his lifetime, nor did any dispute arise until his death in 1992. Even after his death, no claims of ownership were made until 2012, when the respondent began making false claims to the suit land. The learned counsel continued to argue that the respondent neither contested the existence nor the validity of Exhibit P1, despite being given an opportunity to cross-examine. That, during cross-examination, the appellant was firm regarding the acquisition of the suit land. He emphasized that the suit land was distinct from the respondent's land and that the two lands were separated by a road. 4 It was submitted further that PW2, Joseph Mzee Mushi, clearly testified at pages 17 to 18 of the typed proceedings that he witnessed the signing of Exhibit P1 as the fourth person. When shown the document, PW2 identified it, including its measurements, borders, and the names of other witnesses. PW2 also testified that there had never been any dispute over ownership of the suit land, except the present one, which arose in 2012. His testimony was not challenged during the trial. Another reference was made to pages 20 to 21, where PW3, John Omari, testified that, acting on instructions from the appellant, he participated in developing the suit land by planting several trees. PW3 testified further that it was the appellant who was cultivating maize on the suit land until 2004, when PW3 continued cultivating the land on appellant's permission. There was no dispute or objection regarding the use of the land at that time. PW3 continued to state that in 2012, after continued cultivation, a dispute arose when the respondent, who owned a separate and distinct piece of land adjacent to the suit land, prevented them from using the land. The learned counsel emphasized that PW3's evidence was not contested during the trial. Mr. Kilasara continued to submit that during cross-examination, the respondent admitted that Kilamseni Madekenya Mushi owned several 5 pieces of land adjacent to theirs. When they moved from Maua-Kibosho to Shirimatunda, they found him already occupying that area. The respondent admitted that even after her husband's death, there was no dispute over its ownership. The learned advocate questioned how, if the suit land truly belonged to the respondent and her husband, John Kisambu, as the tribunal erroneously held, the said John Kisambu could have allowed Kilamseni to allocate the same land to the appellant? He further wondered why the respondent had never sued the appellant for trespass during the twenty years that she had witnessed the appellant cultivating and using the suit land, as confirmed by PW3’s testimony. Mr. Kilasara reiterated that it is undisputed that the respondent and her late husband, John Kisambu, owned their respective land, which, as submitted above and evident from the record, is entirely distinct from the suit land. The learned counsel noted that the appellant never laid claim to the respondent’s land but merely sought repossession of his own land, which the respondent had trespassed in 2012. In support of his submission, Mr. Kilasara cited the case of Kulwa Kabizi Paulo Sindano Balele & Suleiman Mlela vs Republic [1994] TLR 210, which held that: 6 "Where the trial court wrongly rejects certain evidence, it is the duty of the Appellate court to arrive at its conclusion upon a consideration of the whole of the evidence properly admissible and available on record." Challenging the respondent's evidence, Mr. Kilasara argued that the respondent, who claims to have been allocated the suit land by the local government, failed to produce any documentation or call any allocating officer to substantiate that allegation. However, the respondent conceded that Kilamseni Madekenya Mushi was the original owner of the adjacent land, and that the two plots were demarcated by a road. Similarly, DW2, Joseph Kilamseni Mushi, conceded that there was no dispute of ownership with the appellant and acknowledged that he was not familiar with all portions of his father’s land at Shirimatunda. DW2 averred that since he was not involved in the allocation of the suit land to the appellant, there had been no such disposition. Mr. Kilasara characterized this assertion as misconceived, pointing out that DW2 was never a co-owner of the land with his father. Furthermore, DW3, Didas John, was not even born at the time of the disposition of the suit land by Kilamseni Mushi. Mr. Kilasara faulted the trial tribunal for overlooking evidence presented before it, leading to an erroneous decision. He asserted that the tribunal 7 acted with bias and wrongly analysed the evidence. To cement his submission with the case of Hemedi Saidi v. Mohamedi Mbilu [1984] TLR 113, which held that: “According to law both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win. In measuring the weight of evidence, it is not the number of witnesses that counts most but the quality of the evidence.” From the above observations, Mr. Kilasara commented that, on balance of probabilities, it is evident that neither the respondent nor her late husband, John Kisambu, were ever owners of the suit land. The original owner was Kilamseni Madekenya Mushi, who duly allocated the land to the appellant in 1984, as per Exhibit P1. The learned advocate maintained that the trial tribunal failed to appreciate and properly evaluate the evidence presented before it, hence, reaching an erroneous and unjust conclusion that the respondent is the lawful owner of the suit land. Moreover, the learned counsel submitted that during the visit to the locus in quo, the appellant clearly identified the suit land, including its measurements and boundaries. The disputed road appeared to be a very 8 old road, with no evidence indicating that it had been shifted across the respondent's land, as alleged. He supported this assertion with the case of Deemay Daati and Two Others v. Republic [2005] TLR 132 Mr. Kilasara finalized that this appeal has merit. He accordingly prayed for the appeal to be allowed, the decision of the trial tribunal to be quashed and set aside. In rebuttal, Mr. Gabriel contested the allegation that the suit land belonged to the appellant, who claimed to had purchased it from Kilamseni Madekenya Mushi on 4th February 1984. Mr. Gabriel submitted that the alleged "Hati ya makubaliano ya kiwanja" is a forged document and was not witnessed by Shirimatunda Village Authority. Moreover, the learned counsel pointed out that it is doubtful that John Kisambu was one of the witnesses of the appellant who chased away his father, John Kisambu with his wife (the respondent). They were chased from their home in Maua Kibosho Village to Shirimatunda Village in 1982, where they lived together until John Kisambu died in 1992. Explaining the respondent's evidence, Mr. Gabriel stated that the respondent, Francisca John Kisambu, testified that the 1½ acres of land in dispute was allocated to her and her late husband by Shirimatunda 9 Village Authority since 1982. That, the ½ an acre triangular piece of land in dispute is part of the land allocated to the respondent and her husband, on which a public road passed in 1986, from Bonite to Kibosho. That, the triangular land in dispute is beyond the road. In response to the assertion that the appellant was offered the disputed land in 1984 by Kilamseni Madekenya for TZS 30,000/- which he was owed; the learned counsel contended that no evidence was produced before the trial tribunal to prove that the land belonged to Kilamseni Madekenya. SU2, Joseph Kilamseni Mushi, the son of Kilamseni Madekenya, testified that the triangular land in dispute belongs to the respondent and her late husband, John Kisambu. He denied the allegation that it was the property of his father, Kilamseni Madekenya Mushi. Mr. Gabriel replied further that, the testimonies of Joseph Mzee (SM2) and John Omari (SM3) were contradictory. While the appellant averred that Kilamseni Madekenya offered him the disputed land in 1984, John Omari testified that he had planted Grevillea and mango trees on the same farm and that in 2012, he left the land for the appellant to cultivate maize and beans for his family. Evidence of SM3 was deemed weak, as he stated that the appellant owned land separated by a road, yet no proof of 10 ownership was tendered before the tribunal to substantiate that the land belonged to the appellant. Mr. Gabriel faulted further the appellant's evidence and pointed out that the alleged disposition of land from Kilamseni Madekenya to the appellant in 1984 was not witnessed by the Shirimatunda Village Authority. He insisted that the same land was allocated to John Kisambu and his wife (the respondent) in 1982 by the Shirimatunda Village Authority. In that sense, the learned counsel supported the findings of the trial tribunal. Countering the second ground of appeal, Mr. Gabriel asserted that the case of Kulwa Kabizi Paulo Sindano Babole Suleiman Mlela v. Republic (supra) does not support the grounds of appeal, as the trial tribunal properly recorded the evidence from each witness. The tribunal assessors together with the Chairman, reached the decision that the land in dispute is the lawful property of the respondent. Likewise, in the case of Hemed Said v. Mohamed Mbilu (supra), it was stated that the party with heavier evidence than the other, is the one who must win, based on the quality of the evidence. Concerning weight of evidence of the appellant and respondent, Mr. Gabriel believed that obviously evidence of the respondent was heavier than that of the appellant. Thus, the judgment and decree in land 11 application was properly reached by the trial tribunal. He urged the court to uphold the tribunal's decision and dismiss the appeal with costs for being frivolous and unfounded. In rejoinder in respect of Exhibit P1, Mr. Kilasara submitted that in the written statement of defence of the respondent, the particulars of forgery of exhibit P1 were never pleaded. Also, at the trial there was no evidence such as Forensic Report that was led to substantiate such serious allegations. He subscribed to the case of City Coffee Ltd vs Registered Trustees of Ilolo Coffee Group (Civil Appeal No. 94 of 2018) [2019] TZCA 645 at page 10 and Ratilal Gordhanbhai Patel vs Lalji Makanji [1957] E.A 314 at 316 where the Court of Appeal for East Africa held that: “Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.” Another reference was made to the case of Omari Yusuph vs Rahma Ahmed Abdulkadr [1987] TLR 169 at 174 where it was stated that: 12 “…it is now established that when the question whether someone has committed a crime is raised in civil proceedings that allegation need be established on a higher degree of probability than that which is required in ordinary civil cases.” The learned counsel insisted that since the purported allegations of fraud or forgery regarding Exhibit P1 were neither pleaded nor proved at the trial, they are unfounded and remain an afterthought. Regarding the allegation that the local authority was not involved, Mr. Kilasara asserted that such fact alone does not vitiate the disposition of the suit land from Kilamseni Mushi to the appellant. He stated that the land in question was not a village land, making the involvement of the local authority immaterial. The learned advocate stressed that Exhibit P1 is genuine and was duly corroborated by the oral evidence of PW1 and PW2. Thus, the trial tribunal grossly erred in law and fact by disregarding the same in the determination of the dispute. Mr. Kilasara was of the view that evidence of DW2 Joseph Kilamseni Mushi, should have been approached with caution and analysed in line with the pleadings. 13 Mr. Kilasara reiterated his earlier submission and implored this court to review and re-evaluate the evidence on record and make its own findings. After summarizing the submissions of the learned counsels of both parties and examining the trial tribunal's records, the issue for determination is whether the raised grounds of appeal have merit. Having examined the grounds of appeal, I have noted that both grounds concern evaluation of evidence. Consequently, I will discuss the two grounds of appeal jointly, guided by the well-established legal principle that a first appeal is in the form or rehearing. As a first appellate court, I am obligated to re-evaluate the entire evidence on record, subject it to critical scrutiny, and, where warranted, reach at my own findings. In the case of Afrique Engineering & Construction Company Limited v. The Registered Trustees of the Diocese of Central Tanganyika (Civil Appeal No. 474 of 2021) [2024] TZCA 591 (17 July 2024), it was held that: “…this being a first appeal, it is in the form of a re-hearing, therefore the 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…” 14 In the present matter, the appellant's counsel challenged the trial tribunal's evaluation of evidence. He argued that the appellant's evidence was heavier, asserting that he acquired the suit land from Kilamseni Madekenya Mushi in 1984. The agreement, witnessed by the respondent's husband and PW2, was admitted as Exhibit P1. The learned counsel emphasized that PW3 contributed to the development of the suit land by planting trees. Mr. Kilasara also questioned why, if the suit land indeed belonged to the respondent, she failed to initiate legal action against the appellant for over twenty years for trespass. Mr. Kilasara further contested the respondent's evidence, stating that there was no documentary proof to establish that she had been allocated the land by the Village Government. He criticized the trial Chairman for not adequately evaluating the evidence presented by the appellant. The argument was resisted by Mr. Gabriel, who submitted that evidence of the respondent was heavier than that of the appellant. He said that Exhibit P1 was forged, as it was not witnessed by the Village Authority. Moreover, he noted that evidence of the appellant was questionable, particularly as the son of Kilamseni Madekenya denied the suit land to be the property of his father. 15 Based on the above arguments, I am of considered opinion that this court is called upon to determine which party's evidence is more credible than the other in proving ownership of the disputed land. While considering this issue, at pages 5 of the impugned judgment, the trial Chairman stated as follows: “Baada ya kupitia hoja hizo bishaniwa, nimeamua nianze na hoja ya pili bishaniwa. Kimsingi hoja hii iliibuliwa na upande wa Mjibu maombi. Hata hivyo wakati upande wa Mjibu maombi (utetezi) wanatoa ushahidi wao huku wakiongozwa na Wakili Gabriel Shayo hakuna kokote walikosema kama Baraza hili halina mamlaka ya kusikiiiza shauri hili. Hivyo basi kwa kuwa hoja hii halikuongelewa wakati wa kutoa ushahidi, hoja hii inajibiwa kwamba Baraza hili lina mamlaka ya kusikiiiza shauri hili. Nikirudi kwenye hoja ya kwanza bishaniwa inayohusu umiliki Wa eneo la mgogoro, Mleta maombi ameegemea kwenye kielelezo P1 kwamba alilipata eneo hilo kutoka kwa mtu aitwaye Klamseni Madekenya 16 mwaka 1984 baada ya kushindwa kurejesha fedha kiasi cha Tsh 30,000/= alizomkopea. Aidha kwa upande mwingine, Mjibu maombi alisema kwamba eneo hilo la mgogoro alipewa yeye na mume wake na Serikali ya Kijiji cha Shiririmatunda. Akasema awali walipewa shamba na Serikali ya Kijiji cha Shirimatunda, lakini mnamo mwaka 1986, ilipitishwa barabara iliyotokea Kibosho... At page 6 the trial Chairman continued to state that: “Aidha Baraza hill lilipotembelea eneo la mgogoro, liliona barabara hiyo ambayo ilipita katikati ya eneo la Mjibu maombi na kutengeneza umbo hilo la sambusa. Baraza hili na kama alivyosema Mjumbe Sarah Mchau, liliridhika kwamba kipande hicho cha sambusa (eneo la mgogoro) kilijitokeza baada ya barabara hiyo kupita katika eneo la Mjibu maombi. Lakini pia SU2 Joseph Klamseni Mushi alisema kwamba eneo hilo la mgogoro halijawahi kumilikiwa na baba yake ambaye ni Marehemu Klamseni Madekenya. 17 Alisema baba yake alikuwa akimiliki maeneo mengine huko Shirimatunda lakini siyo eneo la mgogoro. Baraza hili iinaamini ushahidi huu ambao unaonekana kuwa na ukweli kutokana na mazingira yote ya shauri hili. Hivyo basi kwa kuzingatia ushahidi huo, hoja ya kwanza bishaniwa inajibiwa kwamba Mjibu maombi kuwa ndiye mmiliki wa eneo la mgogoro ambalo linatokana na barabara iliyopita hapo Mwaka 1986 na kutenga eneo la mgogoro kutoka kwenye eneo lake na mume wake.” A thorough scrutiny of the evidence reveals that the appellant's evidence was not adequately analysed. The trial Chairman relied predominantly on the respondent's evidence providing only a partial analysis and neglecting to consider some pertinent aspects of the appellant's evidence. It is a well-established legal principle that the party who alleges a fact bears the burden of proving it. The standard of proof is based on balance of probabilities. Section 110(1) of the Evidence Act [Cap 6. R.E 2022] is relevant. This burden of proof never shifts to the adverse party until the party making the allegation has established its case. This principle was clearly articulated in the case of Jasson Samson Rweikiza v. Novatus Rwechungura Nkwama (Civil Appeal No. 305 of 2020) [2021] TZCA 18 699 (29 November 2021), Tanzlii, where the Court of Appeal at page 14 stated that: “It is again elementary law that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his burden and that the burden of proof is not diluted on account of the weakness of the opposite party's case.” In the case at hand, since it was the appellant who claimed ownership of the suit land, the trial tribunal was obliged to analyze evidence presented by the appellant in order to determine whether he sufficiently discharged the burden imposed on him by the law. I have carefully examined the entire evidence. The appellant's claim of ownership is primarily based on Exhibit P1. Unfortunately, the trial Chairman did not analyse this critical piece of evidence. According to the appellant's testimony, he acquired the land from Kilamseni Madekenya Mushi. Their agreement was witnessed by PW2, Joseph Mzee Mushi, and John Kisambu, the respondent's husband. The appellant tendered “Hati ya Makabidhiano ya Kiwanja”, which was admitted without objection and marked as Exhibit P1. 19 It is trite law that admission of exhibit without objection, implies acceptance of its contents. The courts have consistently emphasized this principle. For instance, in the case of Joseph Deus @ Sahani & Another v. Republic (Criminal Appeal 564 of 2019) [2022] TZCA 411 Tanzlii at page 11 it was held that: “It is a settled law that the contents of an exhibit which was admitted without any objection from the appellant, were effectually proved on account of failure to raise an objection at the time of its admission in evidence” On the strength of the above noted principle, it is the finding of this court that the contents of exhibit P1 were sufficiently established on account of failure of the respondent to object it at the time of its admission. Concerning the issue of forgery, with due respect to Mr. Gabriel, the allegations of forgery were never pleaded, as correctly pointed out by Mr. Kilasara. Furthermore, in her testimony, the respondent did not mention the issue of forgery. Therefore, raising such an issue at this stage is an afterthought. I subscribe to the authorities cited by Mr. Kilasara. Regarding the trial Chairman’s findings in respect of the statement made by SU2 Joseph Kilamseni Mushi, the son of Kilamseni Madekenya Mushi, that the suit land did not belong to his father; I am of the view that the 20 same does not negate the fact that the appellant is the lawful owner of the suit land. During cross-examination, SU2 clarified that his father owned multiple plots. Apart from that, among the witnesses to the transaction between the appellant and the late Kilamseni Madekenya Mushi was the respondent's husband. It is therefore surprising that the respondent avers at this stage that the disputed land belonged to her and her late husband, who was a witness to the transfer. In pursuit of establishing ownership, the appellant summoned SM3, John Omari, whose testimony indicated that after transfer of the suit land to the appellant, in 1998 the appellant appointed him as a caretaker of it. John Omari testified that he even planted trees on the land until 2004, when the appellant assumed full control. According to SM3, there was no dispute over the suit land during all the years he served as its caretaker. Having considered the evidence and arguments presented by both parties, I am satisfied that the appellant sufficiently discharged his burden of proving ownership of the suit land on balance of probabilities. In conclusion, I hereby allow the appeal with costs. The findings and orders of the trial tribunal are hereby quashed and set aside. 21 It is so ordered. Dated and delivered at Moshi this 16th day of October 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 16/10/2024 22