LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA LAND APPEAL NO. 5083 OF 2024 (Originating from Land Application No. 10/2023, the decision of the District Land and Housing Tribunal for Mtwara atMtwara) MAULID ABDALLAH BASHA (As an Attorney ofABDALLAH BASHA ASUDI)....... ................ .............................. . APPELLANT VERSUS FATUMATIMAMU...................... RESPONDENT JUDGMENT 23rd & 31st July, 202J DING'OHI, X: The appellant, Maulld Abdallah Basha? under the power of attorney by Abdallah Basha Sudi, unsuccessfully sued the respondent, Fatuma Timamu, in the District Land and Housing Tribunal for Mtwara at Mtwara (hereinafter The trial tribunal^ in Land Application No.10 of 2023. The appellant claimed that in the course of construction, the respondent trespassed into his piece Of land located at Plot No. 166 Block "A", Tandika Street within Mtwara Page 1 of 21 Municipality at Mtwara'Region (hereinafter'the disputed plot). The appellant sought for the following reliefs; L- A declaration that the appellant is the lawful and rightful owner of the disputed land. 2. The respondent be declared a trespasser. 3. Permanent injunction restraining the respondent its agents and whoever acting under the instruction of the respondent from trespassing into the disputed land. 4. The respondent be condemned to pay the costs of the application 5. Any other relief(s) the tribunal deemed fit and just to grant. The respondent strongly disputed the appellant's claim. In her written statement of defence, she averred that the dispute was triggered by the Municipal Council Surveyors after they surveyed their plots sometime in the year 2022. She stated further that after the survey, the appellant's plot was marked as Plot No. 166, Block "A" while the respondent's plot was marked as Plot No. 168 Block "A". She further averred that, at the end of the survey exercise, it was found that the respondent's house had trespassed to the disputed plot for about 0.9m at the front side and 1.36m at the backside. Page 2 of 19 Therefore, the respondent contended that their dispute was not on the ownership of the disputed land but on the boundaries of the disputed plot. After hearing the evidence of both parties, the trial tribunal was satisfied that the evidence by the respondent's side was heavy. It declared the respondent the rightful owner of the disputed land because she acquired it earlier and built her house in 1987 before the survey process was conducted. The trial tribunal therefore invalidated the survey exercise/ process because one of the parties herein was not involved in showing the boundaries. The appellant was aggrieved by the decision of the trial tribunal as above. He filed this appeal on the following two grounds; 1. That the honourable chairperson erred both in law and fact by applying the principle of adverse possession on registered land. 2. That the honourable chairperson erred both in law and fact by failing to analyze the testimonies of the appellant. When this appeal was called for a hearing, both parties appeared in person with no legal representation. The appellant successfully requested this appeal to be argued by way of written submission. Parties complied with the scheduling order set by the court. Page 3 or 19 The appellant began his submission by reminding this court of its role as the first appellate court and that it is vested with the duty to re-evaluate the evidence before the trial court and arrive at its own independent decision if necessary. The appellant referred this court to the cases of Selle & Another vs. Associated Motor Boat Co. Ltd & Others (1968) EA 123 and Peter vs. Sunday Post Limited (1958) EA 424, where the duty of the first appellate court in re-evaluating evidence of the trial court was bolded. He added that in the course of re-evaluating evidence, the first appellate court must assign reasons for so doing. He cited the case of Peter Vs Sunday Post Limited and Abok James Odera t/a A. J Odera & Associates vs. John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR, where the first appellate court was reminded to assign reasons for its decision. Submitting on the first ground of appeal, the appellant argued that the principle of adverse possession was wrongly applied by the trial tribunal because the disputed land was registered as evidenced by the pleadings and testimony of the parties. According to him, the principle is only applicable to unregistered land. He added that the central dispute in this matter was trespass in the registered land and the tribunal was called upon to decide Page 4 of 19 whether the respondent trespassed onto the disputed land. To cement his argument, the appellant cited the case of Emmanuel Ikoki vs. Henry Bundala, Land Appeal No. 261 of 2022 High Court of Tanzania at Dar es Salaam, where the question of adverse possession in unregistered land was discussed and the court held that adverse possession over the registered land is not automatic. The appellant argued further that the principle does not apply automatically as in the case of unregistered land. He averred that for a person to benefit from the said principle he must observe and apply the provisions of section 37 of the La w of Limitation Act. According to him in this case, that was not done. He reminded that the question of adverse possession was not pleaded by the respondent during trial. He requested this court to satisfy itself from the pleadings and the proceedings by parties herein in the trial tribunal. Furthermore, the appellant also cited the case Of Salum Mateyo v Mohamed Mathayo (1987) TLR 111 and Registered Trustees of Holy Spirit Sisters Tanzania vs January Kamiii Shayo and 136 Others Civil Appeal No. 193 of 2016, with the proposition that the trial tribunal misled Page 5 of 19 itself in applying the principle of adverse possession in the case subject to this appeal. On the second ground of appeal, the appellant argued that it is trite law that a party with heavy evidence is entitled to win the case as it was held in: the case of Hemed Said vs. Mohamed Mbilu [1984] TLR 113. He stated that, according to the testimony both, DW1 and DW2, admitted that the Place the house of the respondent built entered into the piece of land owned by the appellant herein. He quoted what was stated by the respondent at the trial tribunal: .lilipokuja zoezi la urasimishaji ndipo ikaonekana mjibu maombi amezidi". The appellant also invited this court to scrutinize the evidence of Tribunal witness 1 (TW1) who testified that the respondent had interfered in one way or another with the land owned by the appellant. He added that the land dispute subject to this appeal arose in 2022 and not in 1987 as contemplated by the trial tribunal. That, taking into account the decision of the Hemed Said case as well as the provisions of Section 3 (2) (b) of the Tanzania Evidence Act, Cap 6 RE 2022, the appellant is of the view that he managed to prove the case to the required standard of the balance of probability. The trial tribunal therefore ought to have decided the case in his favour. Page 5 of 19 According to the appellant, the respondent admitted that part of her house is in the appellants area. The appellant argued further that, it is trite law that who alleges has a burden of proof as per Section 110 (1), (2), and 111 of the Tanzania Evidence Act (supra). He emphasized that since the dispute is of a civil nature that means the tribunal had to sustain evidence that was more credible than the other on a particular fact; Citing Section 3(2)(b) of the Tanzania Evidence Act (supra). The appellant also emphasized that, the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his and that the burden of proof is not diluted on account of weakness of the opposite party's case. To cement his submission, he cited the case of Paulina Samson Ndawavya vs. Theresia Thomasi Madaha, Civil Appeal No.45 of 2017 [2019] TZCA 453. The appellant rested his submission by praying that this appeal be allowed and that the respondent be ordered to demolish part of her house extended to his place so that she remains with the real piece of land. In reply to the first ground of appeal, the respondent argued that the appellant faulted the trial tribunal for applying the principle of adverse Page 7 of 19 possession while in his submission, he discussed much about the issue of evaluation of evidence which is not featured on his said first ground of appeal. The respondent prayed that the submissions alleged for the first ground of appeal and the cited authorities were disregarded for being irrelevant and inappropriate. The respondent added that there is an apparent distinction between the principle of adverse possession and the doctrine of long use of land but the appellant failed to grasp the same and used the two interchangeably while they are different concepts since the former is governed by the Section 37 of the Law of limitation Act while the latter is not. She added that there is nowhere in the judgment of the trial tribunal that the principle of adverse possession is discussed and determined. She argued that the tribunal was guided by the fact that the respondent used the disputed land for a long time as the owner of the same without being disturbed by any person including the appellant as reflected on page 11 of the trial tribunal's judgment. In connection to that the respondent argued further that, it is trite law that a person who has owned and or used the land for a long time without being interrupted should not be disturbed and the rationale behind this Page 8 of19 principle is that had there been any other person with interest on the land he wouldn't have left that person for such long time without claiming the same. She referred this court to the case of Shabani Nassoro vs. Rajabu Simba [1967] HCD 233, which has been cited by the trial tribunal on page 11 of its judgment. The respondent also referred this court to the case of Duke of Leeds vs Ealy of Amhest 2Ph 117 (.123) cited in a book by R.W James and G. M. Fimbo, Custom Land Law of Tanzania: A Source Book; at 551 where it was held that the doctrine of acquiescence applies if a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he could not afterward be heard complaining about it. According to the respondent, the doctrine of acquiescence is the same as the doctrine of long use of property stated in the Shabani Nassoro case which bars disturbing a person who has used the land for a long time without interference and this doctrine utterly differs from the principle of adverse possession. On the second ground of appeal, the respondent argued that it is well known that the standard of proof is on the balance of probability in civil Page 9 of 19 cases. She stated that the balance of probability is tested by weighing the quality and authenticity of the evidence or testimonies of parties. She argued that the tribunal properly analyzed the testimonies of the parties and their witnesses in compliance with the standard of proof governing civil cases and gave the required weight. For instance, according to the respondent, the trial tribunal put reliance on exhibits P6 and DI which together corroborated with oral testimonies with which both prove that the respondent is the lawful owner of the disputed land. She argued further that in explaining the issue of failure to consider the evidence adduced, the appellant ought to have critically analyzed the strength of evidence adduced on his side against the weakness of the evidence of the opposite side vis a viz the decision made thereon. She insisted that the appellant failed to point out or analyze the defects in the evidence of both sides to establish the alleged mischief in analyzing the evidence. She pointed out that as to the disputed plot, the only required proof of ownership for a surveyed plot is documents of ownership issues by the responsible authority. She added that at the trial tribunal, some documents Page 10 of 19 were produced that justify ownership of the disputed: land to her, unlike the appellant. She referred this court to Exhibit P6 and DI. She stated that the trial tribunal summoned an officer from Mtwara Mikindani Municipal Council to make a decision other than what it made. That, oral evidence by the appellant could not surpass her documentary evidence citing the provision of Section 101 of the Evidence Act. The respondent prayed that this appeal be dismissed with costs and the decision of the trial tribunal be upheld. In rejoining, the appellant reiterated his earlier submission and added that the duty of the first appellate court in re-evaluating the evidence of the trial court is a matter of law. He referred me to Rule 36 (1) of the Tanzania Court of Appeal Rules, 2009 also the case of Jamal A Tamim vs. Felix Francis Mkosamali &The AG Civil Appeal No. 110 of 2012. Regarding the principle of long use of land and the concept of adverse possession, the appellant is of the view that the respondent is misleading this court since she failed to explain their differences. He argued that the concept of longtime use of the land emanates from the principle of adverse possession, it is one among the elements to be proved for the one to benefit Page 11 of 19 from adverse possession and thus inseparable. He emphasized that whenever you apply the principle of adverse possession you must regard how long the adverse possessor used the land which must be above the limitation time of twelve years. He referred this court to various cases establishing the principle of adverse possession including the case of Moses vs Loregrove (1952) QB 533B, Hughes vs. Griffin (1969) 1 ALL ER 460, Joseph Alphonce & Another vs. Mariam Masanja (The administratrix of the estate of the late Makula Masanja) Misc. Land Appeal No. 21 2021 and .AG vs.g Mwabezi Mohamedi (Administrator of the Estate of the late Dolly Maria Eustace) & Others Civil Appeal No. 39 of 2019. He further maintained that the trial tribunal failed to properly analyze the testimony he adduced during the trial. I have carefully gone through the trial tribunal record and submissions by both sides. I find that the main issue for determination is whether this appeal has merit. As rightly submitted by the appellant this being the first appellate court it has to re-evaluate and subject the entire evidence to critical scrutiny and, if Page 12 ci 19 necessary, to arrive at its own decision. This position has been discerned in the case of Jamal A. Tamim vs. Felix Francis Mkosamali & Another (Civil Appeal No. 110 of 2012) [2013] TZCA 342, where the Court of Appeal of Tanzania observed inter alia that; "Undoubtedly, this is a first appeal. It is trite law that it is in the: form of a re-hearing. The appellant is entitled in law, to have our own consideration and views of the entire evidence and our own decision thereon: see, D.R. PA ND YA v. R. [1957] E.A 336" See; Paulina Samson Ndawavya vs. Theresia Thomas! Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453. On the first ground of appeal, the appellant faults the trial tribunal for applying the principle of adverse possession on registered land. From the submission of the parties, in a proper case, there would have been two issues that would be discussed on this ground, first, whether the doctrine of adverse possession and the principle of long-term use of land may be applied interchangeably. Second, whether the trial tribunal failed to apply the doctrine of adverse possession. Page 13 of 19 As I have hinted, this is not a proper case because the issue of the adverse possession and/or the long-term use of the suit land was not discussed and determined in the trial tribunal. The appellate court is always reluctant to decide on a matter which was not at issue at the trial. In the case of Herieth Kasidi vs. Agustino Bushiri (Civil Appeal No. 480 of 2020) [2023] TZCA 17767, the Court of Appeal had this to say: "ft is an elementary principle of law that parties are bound by their pleadings. The Court has held so in a number of its decisions including James Funke Gwagiio v. The Attorney General (supra) cited to us by the learned counsel for the respondent. All along, the appellant pleaded ownership of the disputed parcel of land after having bought the same from Chazalino Cholobi and Kongo AH. She did not plead possession. In the premises, she cannot plead adverse possession now. We think pleading it now portrays nothing but an afterthought" I have had ample moment to go through the trial court records. None of the parties in the pleading raised the issue of the adverse possession over Page 14c!' 19 the suit land. It was thus wrong and out of the truck for the trial tribunal to invoke the doctrine the way it did without being pleaded. On the 2nd ground of appeal, the appellant faults the trial tribunal for alleged failure to analyze properly the testimonies of the parties. I have carefully reviewed the judgment of the trial tribunal specifically on pages 10 and 11. I am satisfied that a trial chairman has analyzed the evidence of both parties including that of the appellant. For ease of reference the relevant part of the trial tribunal's judgment speaks as follows; "Kwa ushahidi uliotolewa hapa barazani ukiungwa mkono na mteta maombi mwenyewe unaonyesha nyumba ya mjibu maombi imejengwa zamani. Mteta maombi (PW1) wakati anatoa ushahidi wake ameliambia baraza hili kuwa viwanja vyenye mgogoro viiigaiwa katiya mwaka 1979 na mwaka 1980........" The relevant complaint in my view would be whether the trial tribunal had justification for the decision it made. I would respond negatively. From the above extract, I hesitate to agree with the appellant's argument that his Page 15 of 19 testimony was hot evaluated. It was well evaluated but to the detriment of the appellant. However, after further careful scanning of the trial tribunal proceedings and judgment, I have realized that the trial chairman has determined the case that was not at issue between the parties herein. As shown in the application filed by the appellant in the trial tribunal the claim was over the ownership of the land situated at Plot No. 166 Block A, Tandika Street within Mtwara Municipality which is at the final stage of issuing the Certificate of title by the land authority. The record shows, and the parties agreed before me at the hearing of this appeal that the dispute is not over the whole plot No. 166 Block A of land mentioned in the application but just a portion whose size is not mentioned in the application. And, since the survey by the land authority is still not completed, the decision by the court as to the ownership of whatever portion of land will prejudice the survey exercise by the Local authorities who are not heard, as they were not made parties in the trial tribunal proceedings. I am.also aware that the trial tribunal has called Rugembe Hitlar Maiga who testified as a tribunal witness(TWl). In his testimony, the TW1 told the trial tribunal that the land in dispute was surveyed in the absence of one of Page 16 of 19 the parties. And, admittedly that was the source of the dispute in this case because the appellant has been claiming that the respondent has trespassed into his piece of land following the survey exercise conducted by the town council. There is the map of the survey that has been pinned in the tribunal case file without even being made as an Exhibit. I think the parties should have been asked if they had anything to say concerning the purported survey. As rightly testified by TW1 I would agree that in the trial tribunal, the said survey may have been done contrary to the procedures laid down in the law if the appellant was not involved in the whole process of surveying the disputed piece of land. The Court of Appeal of Tanzania in the case of Obed Mtei vs. Rakia Omari [1989] T.L.R 111 at page 113, observed inter alia that; "Before any survey is made, it is the duty of the Land Officer to make sure that all third parties interests are cleared and if it is a farm, the Land Officer must see to it that the owners agree on the boundaries, '' Page 17 of 19 The above position has been also subscribed by the landmark case of Anthony M. Masanga vs. Penina (mama Mgesi) & another (Civil Appeal No. 118 of 2014) [2015] TZCA 556. Under the circumstances, it is my observation therefore that since the procedures of conducting a survey and issuing the Certificate of Title is incomplete as stated by the appellant under paragraph 6(a) ii of the application filed in the trial tribunal, the process of surveying the land in dispute should be left to its finality to the relevant authority. The aggrieved may challenge the process and/or exercise through a: proper action to which the land authority is to be heard. Given the above exposition, I hereby quash and set aside the proceedings and the judgment of the trial tribunal. The Appeal is allowed to that extent only. Considering that parties are neighbors who are expected to reconcile their misunderstandings amicably, there will be no order as to costs. Page 18 of 19 DATED at MTWARA this 31st day of July 2024 'OHI JUDGE 31/07/2024 COURT: The judgment is delivered this 31st day of July 2024 in the presence Page 19 of 19