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IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO LAND APPEAL NO. 680 OF 2024 (Appeal from the Decision of the District Land and Housing Tribunal for Morogoro District in Land Application No. 40 of 2023) BETWEEN MKUDE ISMAIL TONGANI APPELLANT VERSUS MWAMTUMU SALEHE MSIGALA RESPONDENT JUDGMENT MRUMA,J. In the District Land and Housing Tribunal for Morogoro District the present Respondent Mwantumu Salehe Msigala instituted Land Application against the present Appellant Mkude Tongani Ismail praying for a declaration that she was the lawful owner of a piece of land measuring one acre located at Bonyo Village in Bwakila Chini Ward, an order for vacant possession of the suit land and costs of the suit. It was the statement of the Applicant that the suit land was given to him as giffby her uncle one Selemani Ally Mndai. She stated further that her 1 land was trespassed by the Respondent in 2018. The dispute was reported to Bwakila Chin! Ward Tribunal who failed to reconcile the parties hence institution of the present proceedings before the District Land and Housing Tribunal. The application was strongly resisted by the Appellant who filed a Written Statement of Defence in which he contended that the suit land belonged to him having bought it from one Saidi Omary Mwombe on 26^*^ October 2008 through a sale agreement which was signed by the parties in presence of witnesses. After full a trial the trial tribunal found in favour of the Respondent and declared her the lawful owner of the suit land that is measuring one acre. The tribunal directed the boundaries between the Appellant's and the Respondent's land to be put in place in order to show demarcation of their respective lands. The Appellant was permanently restrained from interfering with the Respondent's portion of land and to costs of the suit. Aggrieved by the decision of the District Land and Housing Tribunal, the Appellant has appealed to this court on the following grounds of appeal:- 1. That, the trial tribunal erred in law and fact for disregarding strong evidence adduced by the appellant herein to prove the ownership of one and half acre of land in dispute. 2. That, the trial tribunal erred in law and fact in deciding in favour of the respondent who failed to prove his ownership of that land in dispute. 3. That, the trial tribunal error in law and fact for declare that the respondent is the lawful owner while both have their premise in that area or location. 4. That, the trial tribunal error in law and facts by failing to examine and evaluate evidence on record adduced by both parties hence decided in favour of the respondent. At the hearing of this appeal Appellant was represented by Ms Kanisia Komba, learned advocate while the Respondent appeared in person and unrepresented. The appeal was argued by way of written submissions. Submitting in support of the first ground of appeal Ms Komba submitted that the District Land and Housing Tribunal disregarded the appellant's evidence and decided in favour of the Appellant who had failed to prove her on preponderance of probabilities as required by section 3(2) of the Evidence Act and the principle laid down in the case of Barelia Karangirangi vs. Asteria Nyalwamba, Civil Appeal No. 237 of 2017,CAT where it was held inter alia that the principle governing proof of case in civil suits is that he who alleges must prove. The learned counsel further contended that on the evidence on record there were between the evidence of the Respondent and that of PW3,the contradictions that went to the root of the matter since the Respondent stated that she was occupying the suit land but there was no evidence was adduced to support her assertions and that she was actually in occupancy over the land, in the circumstance, therefore the Appellant could not be held to have proved her case on the balance of probabilities. According to the counsel any land disposition be it by way of a gift, purchase, inheritance or an allocation must be proved by documents and that a sale agreement between the Appellant and oneSaidi Omari Mwombe (Exhibit Dl), despite the fact that it looks like a letter but it qualifies to be a contract between the contracting parties thereof in terms of section 10 of the Law of Contract Act. The learned counsel referred this court to a decision in the case of Abualy Alibhai Azizi vs. Bhatia Brothers [2000] TLR 288 and the case of Hemed Said vs. Mohamed Mbilu [1984] TLR 113 where it was held that a party whose evidence is heavier than that of the other is the one who must win. According to the learned counsel the evidence of the Appellant was heavier than that of the Respondent. Responding to the submission of the counsel for the Appellant's in his layman's style the Respondent restated the cardinal principle of proof win civil cases which is to the effect that the standard of proof in civil cases is on the balance of probability. The Respondent contended that evidence adduced by the Appellant did not prove that the suit land belongs to him and that his own evidence was heavier than that of the Appellant. He said that the sale agreement (Exhibit Dl) tendered in evidence did not add any weight to the Appellant's case because it does not indicate the boundaries of the disputed land something which suggest that it is not genuine. As stated at the outset of this judgment, evidence on the record shows that the Respondent claimed she acquired the suit land as a gift from her uncle. She called two witnesses to support her claims. Her first witness was Seif Selemani Mndai (PW2) who testified to the effect that originally the suit land belonged to his father one Seleman Ally Mndai. His said father sold one acre of his land and remained with one. He later on gave the remaining acre to the Respondent who was his nephew. This evidence was supported by that of Asha Kondo Chamgunda (PW3) who told the trial tribunal that she owns a piece of land which shares common boundary with the disputed suit land since 1997. Like PWl and PW3 told the trial tribunal that originally there were two acres of land which were owned by the Respondent's uncle before he sold one acre and remained with one which he gave to the Respondent(PWl). On his part the Appellant tendered in evidence a sale agreement (Exhibit Dl), purporting to be an agreement between him and one Saidi Omary Mwombwe. The said agreement was executed on 26^^^ October 2008 before a Kitongoji Chairman of Mkega neighbourhood one Anatori Tadei who also signed as a witness. Two other witnesses also signed the documents. They were Hamis Kanoga and Selemani Saidi Mwombe (apparently the vendor's son). According to Exhibit D1 the agreed purchase price was shillings 45,000/= (Say Forty Five Thousand) only. I have carefully perused the purported sale agreement (Exhibit Dl), and I find that it does not describe the location and boundaries of the purported piece of land the subject of the alleged agreement. Exhibit D1 reads: 'Wimi Ndugu Saidi Omary Mwombwe Namuuzia Shamba iangu Mkude Ismaii Tongoni Lenye Ukubwa wa Heka 1 Vz kwa sh 45,000/=(shiiingi eifu arobainina tana)tu; mbeieya ushahidi wa Kwanza ni mwanangu: 1. SeiemaniSaid Mwombwe.....sgd 2. Sahihi yangu. sgd Sahihi ya mnunuzi. Tongoni; Mashahidi wa Mnunuzi: 1. Hamis Kanoga. sgd 2. Anatori Tadei. sgd. These descriptions do not give sufficient explanation of the land subject to the sale agreement. By looking at Exhibit D1 one cannot locate with precise the land which the Applicant purchased from the said Said Omary Mwombe. Section 29 of the Law of Contract Act declares an agreement which is uncertain to be void. The law says:- An agreement the meaning of which is not certain or capabie of being made certain is void'' As the land purportedly purchased by the Appellant is not described in terms of its location and place (i.e. Village, Ward District and/or Region) one cannot be certain of which land and its location the parties agreed to transact on. The way exhibit D1 is drafted one can claim any land on the earth as the land he/she bought. Such uncertainty makes the agreement void. But even if we can assume that there was a valid sale agreement (which is not the case here), the question would be why the Appellant did not call the vendor Saidi Omary Mwombe or any person who witnessed the signing of the said sale agreement to testify on his behalf? In the Case of Said Hemed Versus Mohammed Mbilu (1984)TLR 113, this Court (Sisya J as he then was) held Inter alia that court is entitled to draw an adverse inference against a party who without any explanation fails to call a material witness to testify on his/her behalf. In the case at hand the vendor Saidi Omary Mwombwe was a material witness for the Appellant's case but he did not call him and did not assign any reason. The inference I am drawing is that had he been called he could have given evidence contrary to the Appellant's interests. Comparing the evidence of the Respondent which is supported by her two witnesses Seif Selemani Mndai (PW2) and Asha Kondo Chemgunda (PW3), with that of the Respondent Exhibit Dl, one realises that the evidence adduced by the Respondent was much heavier than that of the Appellant and it sufficiently proved on the balance of probability that the land in dispute belonged to her. As such this court find no reason to fault the trial tribunal decision, I therefore dismiss the appeal with costs. It is so ordered. Dated at MOROGORO this 24th September 2024 a/'tXV A.R. MRUMA Of o ■i c 4- T' a: •z: JUDGE S/V > 31 S!L 24/09/2024