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THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF TANZANIA AT MANYARA LAND APPEAL NO. 000020931 OF 2024 MINAEL S A F A R I ..................................CO M PLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS YYOELANDREA DEEN'W, HABIYE AWAKI AND MASSAY K I S S A Y .................................. R E S P O N D E N T / DEFENDANT JUDG M ENT KAMUZORA, J, 12th & 27th February, 2025 Before the District Land and Housing Tribunal for Mbulu (hereinafter referred to as the trial tribunal), the appellant sued the respondents for recovery o f piece o f land measuring 20 acres situated at Qamtananat village M aretadu ward within M bulu district (hereinafter referred to as the suit land). According to the appellant, she was first given 3 acres as gift from her late father-in-law in 2003 and later purchased 17 acres from one Maanday Hhayuma in 2006 making it a total o f 20 acres. The appellant claim ed that on 01/04/2021 the suit land was auctioned to the 3rd respondent in execution o f the decree against the 2nd respondent. According to the appellant, the 2nd respondent is her husband but the suit land is her personal property. She claim ed that, she objected attachment o f the suit land but in vain. In his written statement o f defence, the 1st respondent claimed that he purchased the suit land from one Yacob Stephano Paulo and not the 3rd respondent herein thus, disputed the appellant’s claim. The 2nd respondent who is appellant’s husband supported the appellant’s claims that she is the owner o f the suit land. He however admitted to have had a case with the 3rd respondent which was before the Resident M agistrate’s court o f Manyara and registered, Civil Case No. 78 o f 2021 which ended in 3rd respondent’s favour, and the suit land was attached to satisfy the decree. The 3rd respondent denied to have trespassed into the suit land. He stated that he did not sell the suit land to the 1st respondent rather it was sold through public auction after he had won a case against the 2nd respondent. After hearing the case, the trial tribunal dismissed the appellant’s case for want o f merits. The appellant was displeased with the trial tribunal’s decision and preferred the instant appeal. Initially, the appellant raised 5 grounds o f appeal but with the leave o f the court, she filed 3 additional grounds o f appeal. After a careful scrutiny o f both the original and additional grounds o f appeal, they can be conveniently summarized and reduced into three grounds o f appeal as follows; 1. That, the trial tribunal erred in declaring the 1st respondent as lawful owner o f the suit land despite overwhelming evidence by the appellant which proved the suit land to be a family property. 2. That, the trial tribunal relied on extraneous matters to decide the matter in the favour o f the 1st respondent. 3. That, the trial tribunal erred in law fo r not vising the locus in quo. Hearing o f this appeal proceeded by way o f written submissions. The appellant and the 2nd respondent appeared in person unrepresented while the 1st and 3rd respondents were represented by Mr. Gwakisa Sambo, learned advocate. I will start my deliberation with the 3rd ground o f appeal which refers procedural irregularity. The appellant faulted the trial tribunal for not visiting the locus in quo which was very essential in ascertaining the boundaries o f the suit land. She claim ed that after hearing the matter, she requested the trial tribunal to visit the locus in quo but the prayer was rejected. She was o f the view that, it was necessary to visit the locus in quo since the 3rd respondent stated that there is no any family house on the suit land, while the appellant lives on the suit land with her family. To buttress her arguments, she referred the case o f Nizar M. H. Ladak vs Gulamali Fazal Jan M oham ed and K im o n id im itri M an th ea k is vs Ally Azim Dewji & o th ers Civil Appeal No. 4 o f 2018 [2021] TZCA 663 (3 Novem ber 2021, Tanzlii) which both em phasized on the need to visit the locus in quo. In response, Mr. Sambo subm itted that, visiting o f the locus in quo is the discretion o f the court and it can be done where there is a need to do so. He referred the case o f Bom u M oham ed vs H am isi A m iri Civil Appeal No. 99 o f 2018 Court o f Appeal o f Tanzania at Tanga [TZCA] (27 February 2020. He argued that, there was no need o f visiting the locus in quo since there was no dispute regarding boundaries o f the disputed land. That, the trial tribunal refused the prayer for visiting the locus in quo by assigning reasons. He insisted that, the house which the appellant was living are in two acres o f land which was not in dispute. That, the boundaries were clearly explained through the report subm itted before the executing court. He insisted that there was no need for visiting the locus in quo and no prejudice was caused by such omission. Regarding the cases referred by the appellant, Mr. Sambo submitted that the same are distinguishable from the circum stance o f the case at hand since they did not set mandatory requirement for visiting the locus in quo. As rightly argued by the learned advocate for the 1st and 3rd respondents and in view o f the referred authorities by both parties, visiting o f the locus in quo is not mandatory. It is within the discretion o f the court or tribunal and it can only be done where it necessary. In the instant matter, the question is whether it was necessary for the trial tribunal to visit the locus in quo. Page. 2 I have gone through the record and it shows that, after the closure o f the case, the appellant moved the trial tribunal to visit the locus in quo purposely to verify if the house, she was living in is located at the center o f the suit land. The learned trial chairperson rejected the prayer for visiting o f the locus in quo for the reason that, the dispute was on ownership o f 20 acres and not the properties found on the suit land. I agree with the trial tribunal’s finding that the circumstance in this case did not raise any need to visit the locus in quo. The record and evidence are clear that the central issue for determ ination was who is the lawful owner o f the suit land and not w hether there was a house at the center o f the suit land. As well captured by the counsel for the 1st and 3rd respondents, the evidence was clear that the Appellant was living in a house built in two acres which is not part o f the disputed land. The execution as report which was adm itted as exhibit D 12 shows that after m easuring the land for attachment it was found to be 22 acres and only 20 acres were attached leaving 2 acres within which the residential house was built in. With such evidence, it is clear that there was no dispute over boundaries rather that the 20 acres attached was properly attached and sold in public auction. I am therefore o f the view that the view that, the circum stance o f this case did not establish necessary need for the tribunal to visit the locus in quo. The 3rd ground o f appeal lacks merits and it is accordingly dismissed. Turning to the 1st ground o f appeal, the appellant faulted the trial tribunal for failure to properly analyse the evidence, which to her, it proved that the suit land was a family property owned by the appellant and her husband, the 2nd respondent. The appellant submitted that, after she married the 2nd respondent, her father-in-law gave them 3 acres o f land in 2003. That, she also purchased 17 acres o f land from one M anday Hayuma making a total o f 20 acres o f land. That, they have been using the suit land as matrimonial property from 2003 until 2021 when the same was sold without her consent while she is the co-owner to the suit land. She insisted that, her evidence proved that the suit land is a matrimonial property and in whatever transaction involving the suit land, her consent was mandatory. To buttress her arguments, she referred the case o f Hadija Issa Arerary vs Tanzania Postal Bank which em phasized the need to obtain a spouse consent in order to protect rights and interests o f both parties in matrim onial property. She added that, there was no any tangible evidence which proved that the suit land was the property o f the 2nd respondent before its attachment. The appellant’s submission was supported by the 2nd respondent (the appellant’s husband). He submitted that, the suit land is a family land owned jointly with the appellant and therefore, in any transaction involving the suit land, the appellant’s consent should have been obtained. In reply, Mr. Sambo argued that the appellant is trying to create a new case by claim ing that the suit land is a m atrim onial property while in her pleadings she claim ed to be a sole owner o f the suit land. He submitted that, there is no even a single paragraph in the application in which the appellant claim ed that the suit land was a m atrim onial property. That, even in her prayers, she prayed for the trial tribunal to declare the suit land as appellant’s personal property. Mr. Sambo argued that, the appellant is bound by her own pleadings and therefore she cannot adduce evidence which goes contrary to the pleadings. He referred the case o f M a rtin F re d ric k R ajab u vs Ilem ela M u n icip al C ouncil an d a n o th e r (Civil Appeal No. 197 o f 2019) [2021] TZCA 434 (18 July 2022), D avid S ironga vs F ran c is A ra p M uge & an o th er [2014] EKLR (Court o f Appeal o f Kenya) and M ak o ri W assaga vs Jo sh u a M w aikam bo & an o th er [1987] TLR 88. He added that, the evidence on record does not prove the appellant’s claim that the suit land is a matrimonial property rather it shows that the suit land was the property o f the 2nd respondent. He was o f the view that, there was no need for appellant’s consent since the suit land was not a matrim onial property and was sold through the court’s order. Mr. Sambo submitted further that, the appellant’s claim that she was not aware o f the auction is not correct since the evidence on record is clear that the appellant filed several applications trying to stop the execution but they were all dismissed. He insisted that, there was due diligence before the execution was carried out as per the evidence o f SU2 and SU4. In his decision, the learned trial chairperson referred contradictions in the evidence o f the appellant and her witnesses and concluded that, the appellant failed to establish her claim s on the standards required. He was however satisfied with the defence evidence proving ownership in favour o f the 1st respondent. I have decided to re-evaluate the evidence in totality and see if the appellant proved her case on the required standards. Since the appellant claim ed to be the lawful owner o f the suit land, she was bound to lead her evidence to strictly establish her claim s on the balance o f probabilities. From the record, it is not in dispute that, the suit land was attached and sold through public auction in execution o f the decision passed by the Resident M agistrate’s court o f M anyara against the appellant’s husband (the 2nd respondent) in Civil Case No. 78 o f 2021. The evidence by SU4 who was the chairperson o f Sidgi division was to the effect that, the suit land was the property o f the 2nd respondent. The evidence also shows that, after the suit land was attached, it was sold to Yakobo Stefano Paulo (SU5) who later sold the same to the 1st respondent. The record shows that, the appellant attempted to challenge the attachment and sale o f the suit land but in vain therefore, she filed a suit before the trial tribunal to establish her right over the suit land. In view o f the decisions referred by the counsel for the 1st and 3rd respondents and other mo‘re decisions, parties are bound by their own pleadings and any deviation from the pleadings is unacceptable. I have gone through the appellant’s application form filed before the trial tribunal, which essentially shows the basis o f the appellant’s claims against the respondents. As well pointed out by Mr. Sambo, the appellant claimed that the suit land was her sole property and there is nowhere she claimed it to be a family or matrimonial property. For instance, at paragraph 6(a)(1) the appellant claimed that she was first given 3 acres as gift by her father-in-law in 2003 and in 2006, she purchased 17 acres from one Manday Hhayuma. On the reliefs sought, the appellant prayed for a declaration that she is the lawful owner o f the suit land. From her evidence, the appellant claimed to have acquired the suit land at two different times; 3 acres from her father-in-law and 17 acres purchased from M anday Hhayuma. Starting with the 3 acres, the appellant claimed in her pleadings that she was given that land as a gift by her father- in-law (the 2nd respondent’s father). She however gave a different story in her testimony as she claimed that the 3 acres o f land was given to her and her husband. Unfortunately, her husband testified that the land was given to the appellant as her own property. The appellant’s witness SM2, Tadei Qamara claim ed that he was present at the time the 3 acres were given to the appellant but while under cross examination, he stated that he could not tell if the land was given to the appellant alone or with her husband jointly. He further pointed out that, the 3 acres o f land are located outside the suit land. The above evidence is not only contradictory but also does not support the pleadings. On the claim for 17 acres, the appellant’s husband (the 2nd respondent) testified that, the appellant purchased 17 acres using her own money. Again, on this aspect, the appellant’s evidence contradicted her own pleadings on the m ode the suit land was acquired. Since in her pleadings and evidence before the trial tribunal the appellant never referred 17 acres as family property, raising the same at the appellate stage is an afterthought. Apart from that, there is no evidence which she presented to prove that she purchased 17 acres from M anday Hhayuma in 2006. The appellant’s evidence also contradicted that her o f witnesses. She claimed to have purchased 17 acres customarily at the sum o f TZS 3,400,000/= which was partly paid in cash and partly paid through giving cows but she failed to specify how much was paid in cash and how many cows were given to the seller. The appellant’s witness SM2 one Tadei Qamara claim ed to have witnessed the purchase o f 17 acres by the appellant but alleged that, the payment o f 17 acres was made in lump sum o f TZS 3,400,000/= and the money was handed by the appellant to the seller in his presence. Also, while the appellant claim ed that in her evidence that at the time she purchased the suit land only the seller M anday Hhayuma and Tadei Qamara (SM2) were present, SM2 claim ed that, at the time the appellant purchased the suit land Niim a Khaday was also present. From the above analysis, the appellant’s evidence regarding the purchase o f the 17 acres from M anday Hhayuma is contradictory hence, the learned trial chairperson was correct in disregarding it. The 1st ground o f appeal therefore lacks merits and the same is dismissed. On the 2nd ground o f appeal, the appellant faulted the trial tribunal for favoring the 1st respondent and relying on extraneous matters which were not stated by the appellant and her witnesses. She referred her evidence before the trial tribunal and insisted that, before she married the 2nd respondent, he had never owned any property but after they got married, her father-in-law gave them a piece o f land m easuring about 3 acres. That, in 2006 the appellant purchased a piece o f land m easuring about 17 acres from one M anday Hhayuma. The appellant faulted the trial tribunal for favouring the respondents and relying on the evidence o f the 1st and 3rd respondents which she considered as m isleading. She insisted that those witnesses gave the false statement when they stated that the appellant and her family do not live on the suit land. Mr. Sambo submitted that, the evidence on record was properly analyzed by the trial tribunal and there is no any favoritism as alleged by the appellant. At outset, the claim o f favoritism by the appellant does not have any evidence. Equally, the appellant could not specifically point out any extraneous m atter relied upon by the learned trial chairperson. In his decision, the learned trial chairperson declared the 1st respondent as a lawful owner o f the suit land. I have keenly gone through the evidence on record and I do not find any favour on the part o f the 1st respondent. As I have pointed out in the first issue, the suit land was sold through public auction and SU5 emerged as a successful bidder. This is evidenced by exhibit U 1 1 (certificate o f sale). SU5 later on sold the suit land to the 1st respondent as evidenced by exhibit U13. I am o f the settled view that, the 1st respondent was able to prove that he purchased the suit land. The 2nd ground o f appeal is therefore meritless. In the upshot and basing on the above discussion, I find the appeal to have no merits. The appeal is therefore dismissed with costs. D ated a t T H E H IG H C O U R T O F TA N Z A N IA A T M A N Y A R A this 27th o f February 2025 . Page. 5