MOHAMED ABU OLOTU VS MAMA CLEMENTINA FOUNDATION

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND APPEAL NO. 9701 OF 2024 (Originating from Land Application No. 95 of 2020 of the District Land and Housing Tribunal for Moshi at Moshi) MOHAMED ABU OLOTU (Administrator of the estate of the late Abu Olotu) ……………………................. APPELLANT VERSUS MAMA CLEMENTINA FOUNDATION …..............…... RESPONDENT JUDGMENT 20/08/2024 & 30/08/2024 SIMFUKWE, J. This is an appeal against the decision of the District Land and Housing Tribunal for Moshi at Moshi (Trial Tribunal) in Land Application No. 95 of 2020. 1 The brief background of the matter, is that the appellant, who is the administrator and one of the beneficiaries of the estate of the late Abu Olotu, alleged before the trial tribunal that the disputed land, Plot No. 890 Block DDD Section III within Moshi Municipality in Kilimanjaro Region, belonged to his late father, Abu Olotu. That, the respondent has trespassed into the suit land and constructed permanent structures therein. The appellant being the administrator and one of the beneficiaries of the late Abu Olotu, has failed to collect the suit property and distribute the same to the beneficiaries. On that basis, the appellant moved the trial tribunal to declare that the suit land forms part of the estate of the late Abu Olotu and the respondent is a mere trespasser to the suit premises. The appellant's assertion and the reliefs sought were disputed by the respondent. Despite agreeing that the disputed property was previously owned by the appellant’s father, Abu Olotu, it was argued that the same was sold to the respondent by Abu Olotu (deceased) through Juma Seif Olotu the father of the deceased. The trial Tribunal scrutinized the entire evidence of both parties and concluded among other things that the respondent is the lawful owner of the disputed land and that the appellant is not a lawful owner of the disputed land. 2 The appellant was aggrieved and preferred the instant appeal on the following grounds: 1. That the learned Chairman grossly erred in law and fact to decide that the late Abu Olotu gave consent to one Juma Sefu Olotu to sale the suit plot on his behalf to the Respondent without any proof. 2. That the honorable Chairman erred in law to decide that construction of permanent building on the suit plot by the Respondent is proof that she purchased the suit plot 3. That the honourable Chairman erred in law to declare the Respondent lawful owner of the suitland while they had never raised a counter claim. 4. That, the honorable Chairman erred in law to dismiss the applicant’s claim over the suit plot while the same is still registered in the name of the Appellant's deceased father and had never been transferred to the Respondent. 5. That the learned Chairman did not properly evaluate the evidence on record which he could reach to different decision. (sic) When the appeal was called for hearing, the appellant was represented by Mr. Gideon Mushi, learned counsel while the respondent enjoyed the service of Mr. Moses John Basila, learned counsel. 3 Submitting on the merit of this appeal, Mr. Gideon adopted all the grounds of appeal to form part of his submission. Further, he opted to consolidate the 1st, 2nd, 3rd and 5th grounds of appeal and argued them jointly as they concern issues of evidence. Beforehand, Mr. Gideon referred to Section 110 of the Tanzania Evidence Act, Cap. 6 R.E. 2019, which prescribes the standard of proof in civil cases to be on balance of probabilities. That, the party with stronger evidence compared to the other, is the one who must win the case. He subscribed to the case of Hemedi Said v. Mohamed Mbilu [1984] 113 to support his submission. The learned counsel stated that the duty of the Court is to receive evidence from the parties in dispute, together with their respective witnesses, assess the credibility of each witness before making a finding on the contested facts in issue, as observed in the case of Stanslaus Rugaba Kasusura and A.G. v. Phares Kabuye [1983] TLR 334. Mr. Gideon continued to state that it is trite principle of law that, once the lower court fails to properly assess and analyze the evidence presented during the trial, the higher court will assume the role of the lower court, re-assess and re-evaluate the evidence, arriving at its own findings as it 4 was held in the case of Deemay Daati and 2 others v. Republic [2005] TLR 132. Mr. Gideon continued to submit that once the parties and their respective witnesses present their evidence before the court, the presiding Magistrate or Judge should make a verdict based on the evidence presented during the trial. He cited the case of Nkungu vs. Mohamed [1984] TLR 46 to support his argument. Moreover, Mr. Gideon faulted the trial Chairman for ruling in favor of the respondent despite the weak and contradictory evidence presented by the respondent. He explained that the appellant, as an Administrator of the estates of the late Abu Olotu, sued before the Trial Tribunal for trespass committed by the respondent on the suit land, which is part of the estates of the late Abu Olotu to be administered by the appellant. The learned counsel made reference to the evidence of Mohamed Abu Olotu (SM1) and Veronica Saphiel Kisaka (SM2), who testified that the suit land is the property of the late Abu Olotu and that no transfer of the suit land has ever been done to date. The appellant, who testified as SM1 before the trial Tribunal, stated that soon after being released from prison, he petitioned before Moshi Urban Primary Court to be appointed as Administrator of the estates of the late Abu Olotu. Forms IV, V, and VI 5 were admitted as Exhibits P1, P2, and P3 respectively. While collecting the deceased's estates, the appellant found the respondent occupying the suit land and erecting a permanent building on it without any legal justification. Despite several demands to hand over the plot to the appellant for distribution to the lawful heirs of the deceased, the respondent remained reluctant. As a result, the Appellant filed the dispute before the trial Tribunal. Furthermore, the learned counsel noted that SM2, Veronica Saphiel Kisaka, who testified as the Assistant Land Officer of Moshi Municipal; stated that the sole owner of the suit land since 1992 has been the late Abu Olotu. The original copy of the Letter of Offer with the name of Abu Olotu as the legal owner of the Suit Plot was admitted as Exhibit P5. In addition, it was argued that, as there has been no transfer of the suit land, Moshi Municipal recognizes the late Abu Olotu as the legal owner of the suit plot to date. The learned counsel lamented that despite the watertight evidence presented by the appellant, the learned trial Chairman of the tribunal ruled against the appellant. Mr. Gideon pointed out the following weaknesses in the Respondent's evidence: That, SU1 Mary Mokiwa, while under oath before the Trial 6 Tribunal, confirmed that Juma Seif disposed of the suit plot to the respondent, while in reality, Juma Seif was not the actual owner. He supported this contention by referring to page 47 of the typed proceedings. It was contended further that, after discovering that Juma Seif was not the owner of the suit plot, the respondent did not take any legal action against Juma Seif, such as filing a criminal case before the court. When cross-examined by Sarah Mchau (Assessor), SU1 confirmed that the entire exercise of the disposition of the suit plot was concluded by Mr. Juma Seif, as reflected at page 48 of the typed proceedings. That, as testified by SU1 Mary Mokiwa, it is true that Juma Seif was the only person who sold the suit plot to the respondent on behalf of Abu Olotu, who was alleged to be sick. It was noted that since the witness confirmed that Juma Seif was not the actual owner of the disputed plot, Juma Seif should have had legal authority (Power of Attorney) to dispose of the plot to the respondent on behalf of the late Abu Olotu, which was not presented before the Trial Tribunal. Mr. Gideon insisted that if Juma Seif asserted that Abu Olotu was sick, it was the respondent's duty to request proof (Medical Report) to verify whether Abu Olotu was indeed sick or not. It was averred that, the fact that the respondent is the owner because she constructed permanent buildings on the suit plot is a misconception. 7 One cannot be declared the owner of land solely because he has erected a permanent building on it. Ownership must be proven. The second weakness of the respondent’s evidence was said to be in respect of the testimony of SU2 Josephina John Mushi, who stated before the Tribunal that Abu Olotu was accompanied by Juma Seif when he went for the purpose of disposition of the suit land. In contrast, SU1 asserted that Mzee Juma Seif was alone when he told the respondent that Abu Olotu was sick and needed money for his medication. He referred to page 50 of the typed proceedings to substantiate this contention. It was argued further that SU2 did not state any legal reason for their failure to transfer the Letter of Offer to the respondent since 2003. The reason given for failing to transfer ownership was an afterthought, as more than ten years had elapsed since the alleged purchase of the suit plot. Assuming the Administrator of the estates of the late Abu Olotu had not been appointed to date, when will the respondent transfer ownership of the suit plot to her? He supported this argument by referring page 59 of the typed Proceedings. While challenging evidence of SU1 and SU2 that the owner of the suit plot was the respondent; the learned counsel averred that at that time these 8 witnesses were not employed by the respondent; thus, their evidence remained hearsay with no evidential value. Regarding evidence of SU3 Mathew Mushi, who stated that Abu Olotu gave authority to Juma Seif to dispose of the suit plot to the Respondent; Mr. Gideon argued that the alleged authority had never been produced before the trial Tribunal. He supported his argument with the proceedings at page 63 of the typed proceedings of the trial Tribunal. Concerning the document which was alleged to have been written by the late Abu Olotu, Mr. Gideon contended that it has no legal justification to confirm that Abu Olotu was indeed the author of the said document. Despite the fact that the document does not indicate who prepared it, it neither shows the Respondent as the purchaser of the suit plot nor mentions the purchasing money of the suit plot. It was opined that the document has no legal effect; therefore, the tribunal should have not acted upon it. From the above observation, Mr. Gideon remarked that it is undisputed that Juma Seif, or Juma Seif Olotu, disposed of the suit plot belonging to Abu Olotu without any legal authority. That, as asserted by SU1 that they had discovered that Juma Seif lied to them about the ownership of the 9 suit land, however, the respondent didn't take any legal action against him. The learned counsel was of the view that the disposition of the suit land was done without prior consent or legal mandate from the owner, Abu Olotu. He implored this court to declare that the said transaction is therefore illegal ab initio. According to the appellant’s counsel, the strength of the appellant's evidence was that it was not disputed that the suit land belonged to the late Abu Olotu, as per Exhibit P5, the Original Letter of Offer admitted before the Trial Tribunal. Moreover, it was not disputed that the appellant is the administrator of the estate of the late Abu Olotu, in accordance with Exhibit P1, Exhibit P2, and Exhibit P3, which are Form Nos. IV, V, and VI respectively. Furthermore, it was undisputed that upon filing the Probate Cause before the Court, the appellant did not face any objection regarding his appointment. Also, it is not disputed that the Appellant used to pay Land Rent for Plot No. 890, Block DDD, Section III, Moshi Municipality, as shown in Exhibit P4. The learned counsel reiterated his earlier submission in respect of assessment of evidence. He insisted that evidence presented by the respondent was weak and contradictory, compared to the strong and 10 consistent evidence on part of the appellant. He also criticized the trial Chairman of the Tribunal for ruling against the appellant. He substantiated his argument with the case of Bashiru Athuman vs AnnaJoyce Mutungi (Administratrix of the Estates of the late Veneradiana F. Ihangwe), Land Appeal No. 5/2002, HC. The learned counsel continued to challenge the findings of the trial Chairman that the respondent was the lawful owner of the suit land simply because she erected a permanent building on the same. He said that the same was a misconception and cannot entitle ownership. That, such reasoning would open Pandora's box and cause chaos within the community. Mr. Gideon was of the opinion that no one can benefit from land that does not belong to him. It was stated that since the respondent didn't raise any counterclaim regarding the suit plot, it is immaterial that the trial Tribunal declared the respondent the lawful owner of the suit land. In his final remarks, the learned counsel submitted that the proceedings, judgment, and all orders made by the trial Tribunal are tantamount (sic). He prayed the appeal to be allowed with costs, the proceedings, judgment and decree issued to be quashed and set aside. He also urged this Court 11 to declare that the disputed property is the lawful property of the late Abu Olotu, subject to administration by the appellant. Before countering the above submission, Mr. Moses notified this court that the appellant has abandoned all grounds and introduced a new and different ground of appeal from the bar on the allegation that all are matters of evidence. In reality, only the fifth ground relates to the evaluation of evidence, which does not challenge the decision of the trial Tribunal protected by section 45 of the Land Dispute Court Act Cap 216 R.E 2019. That, at the 5th paragraph 2nd page of appellant’s submission in chief, the new ground which was introduced was that, the learned trial chairman of the tribunal erred both in fact and in law when held in favor of the respondent despite weak and contradictory evidence adduced on part of the respondent. To support the issue of new ground, the learned counsel cited the case of Halfani Charles vs Halima Mapapu (Misc. Land Appeal 85 of 2021) [2021] TZHCLandD 750 (28 October 2021) at page 7 and 8 where this court when faced with a similar scenario cited Court of Appeal decisions and observed that: “I must state at the outset that, I have observed that, in his submission, the appellant's Advocate has raised new 12 grounds which never featured in the grounds of appeal. This is not acceptable in law, as a case is built up by pleadings that are before the Court. It is a principle of the law that parties are bound by their pleadings and are required to stick to their pleadings. In the case of Philips Anania Masasi v Returning Officer Njombe North Constituency and Others, Misc. Civil Cause No. 7 of 1995, Songea (unreported) where Samatta, J stated that: - "Litigation is not a game of surprise." Likewise, the appellant in this appeal is required to stick to his grounds of appeal submitted with the Memorandum of appeal, raising new grounds and issues at the time of submission, the appellant's Advocate was required to obtain leave of the court to add a new ground of appeal instead of submitting the same from the bar. The appellant's Advocate in way (sic) or another prejudiced the respondent, who was taken by surprise.” From the above authority, Mr. Moses urged this court to consider the cited authorities and disregard the submission made in support of the new ground. Also, it was his argument that since no further grounds have been 13 submitted, the appeal ought to be dismissed with costs for lack of merit, without further wasting the precious time of this court. In the alternative and without prejudice to the above submission, Mr. Moses challenged the submission in chief of the learned counsel for the appellant. He submitted that no single piece of evidence tendered by the appellant responded to the issues which were raised before the trial tribunal. While addressing the issue of the weakness of the respondent’s evidence as asserted by the appellant; the learned counsel elaborated that whenever evaluation of evidence is contested, issues which were to be proved by such evidence must also be considered. Any allegation that the evidence was weak must be tested by referring to a specific issue which was contentious before the trial tribunal, whose proof depended on such evidence. The fact that the name appearing on the title deed is Abu Olotu was not in issue, and the fact that the respondent had not transferred it to his name after buying was also not in issue. Mr. Moses opted to reply the 3rd, 4th and 5th issues which were raised before the trial tribunal. He explained that there is no weakness in the respondent's evidence regarding proof of the 3rd, 4th and 5th issues. It was 14 averred that the respondent was not declared the owner because he erected a building on the suit premises, the erected building is proof of development she made, which was done after the respondent had purchased the suit land via exhibits D2 and D3. It was averred further that the 1st, 2nd and 3rd witnesses were firm that the suit premises belonged to the respondent. It was Mr. Moses’s belief that evidence from the respondent was more credible and relevant to the issues, leaving nothing for this honorable court to re-evaluate. He explained further that from page 44 to page 61 of the typed proceedings, the trial tribunal's record shows evidence of SU1, SU2, and SU3, which corroborated each other. They depicted three documents under which the suit land was sold to the respondent, namely: Exhibit D1, a statement by the owner Abu Olotu that he had sold the land, which was admitted under section 34(1)(b) of the Evidence Act, Cap 6 R.E 2022. The second document is a sale contract which was admitted as Exhibit D2, signed by Abu Olotu's father, who was the original owner. SU2 and SU3 explained that Abu was sick and urgently needed money for his medications and was required to sign an addendum upon his return. This document was not objected by the appellant. The third document was the Addendum Contract of Sale, Exhibit D3, which Abuu Olotu signed 15 as a vendor on 12th March 1999. The document was also not objected and marked as D3. In addition, the respondent’s counsel submitted that SU1, SU2, and SU3 provided consistent evidence on how the land was sold to the respondent and the involvement of exhibits D1, D2, and D3. Furthermore, exhibits D4 and D5 were collections of documents which were given to the respondent by Abuu Olotu after purchasing the suit premises. Moreover, Mr. Moses conceded that the standard of proof in civil cases is on balance of probabilities as it was held in the case of Hemedi Said (supra). Also, the learned counsel for the respondent supported the case of Nkungu vs. Mohamed (supra). He insisted that there is no better evidence proving the 3rd, 4th, and 5th issues than the evidence presented by SU1, SU2, and SU3 and exhibits D1, D2, D3, D4, and D5. Mr. Moses was of the opinion that, in case there were some minor errors, section 45 of the Land Dispute Court Act (supra) is clear that no decision of the trial tribunal may be nullified on grounds of such minor errors, irregularities, improper reception of evidence unless they occasion a miscarriage of justice. 16 Regarding the authorities cited by Mr. Gideon, Mr. Moses was of the view that all of them support the respondent's case. The learned counsel insisted that errors alone are not grounds for appeal, as the issue must be whether such errors occasioned a failure of justice. He criticized Mr. Gideon for failing to explain how the errors occasioned failure of justice. Mr. Moses noted that it was not explained why the case was filed 28 years after the respondent took possession. He stated that the fact that his father's name appears on the title deed does not prove ownership of the property sold by his father. The learned counsel for the respondent continued to submit that after the addendum was signed, Abu Olotu passed away, and no administrator was appointed. When the respondent approached the family of the appellant, a false administrator appeared, and the respondent refused to deal with her. Another weakness on part of the appellant, pointed out by Mr. Moses, was that the respondent purchased the house in 1992. Abuu Olotu died in 2003, and the appellant instituted the land case 28 years after the disputed property was disposed of. During all that period, the respondent was in actual possession, having constructed houses for teachers who 17 reside there to date. He questioned that if being in jail was the reason for the delay, where were other relatives who are also heirs? Why did he bring another relative as his witness to testify before the trial tribunal about what made them fail to claim the suit premises if their father was truly unable to do it 11 years before he died? The learned counsel was of the view that probably Abuu Olotu and his relatives knew that the suit premises were sold, but the appellant who was from jail had bad intentions against the respondent. Contesting the appellant's evidence that the title deed is in the names his father, he is the administrator and heir, and the respondent’s failure to transfer the title deed after sale; Mr. Moses contended that, that piece of evidence does not address the issue raised. He stated that the appellant was testifying on non-contentious matters only. Also, at page 36 of the typed proceedings, during cross-examination, it was revealed that the appellant was merely a busybody regarding issues which he had to tender evidence. Even SM2 was clear that he has no problem with the respondent who had purchased the suit premises, but she was only testifying that the name appearing on the title deed is Abuu Olotu and there is no evidence of transfer, which does not address the raised issues. 18 Moreover, Mr. Moses averred that the Oxygen Principle was applied to build the appellant's case which was filed out of time, yet the sinking boat was impossible to rescue. Secondly, Mr. Moses recalled that there was an exhibit which they had objected to, which was initially admitted as ID1 but later tendered again and admitted as exhibit P5 for the sake of fairness and justice. He said that, those were signs of the court's commitment to fairness and justice, but the appellant's case was insufficient to uphold justice. In his conclusion, Mr. Moses reiterated his earlier submission and continued to implore the court to dismiss the appeal for lack of merit with costs. In rejoinder, Mr. Gideon reiterated his earlier submission. Responding to Mr. Moses’s argument that the appellant raised new grounds of appeal, Mr. Gideon submitted that the alleged new ground is purely a matter of fact and evidence, and the appellant intended to address the fact that the trial Chairman failed to properly assess, examine, and evaluate evidence. The whole submission is backed up by section 110 of the Evidence Act (supra). 19 While countering the submission that the erection of permanent buildings on the suit land was not among the reasons which made the trial tribunal decide in favour of the respondent, Mr. Gideon made reference to page 6 of the typed judgment to dispute the reason used to decide in favour of the respondent, he termed them as weak. He was of the view that if everyone could build on their lands only, there would be no disputes in court. Regarding issues for determination raised at the trial tribunal, the learned counsel submitted that issues raised on 12/04/2023 at page 33 of the typed proceedings were three, not five as contended by Mr. Moses. Responding to the argument that the respondent's exhibits were admitted without objection, the appellant's advocate asserted that admission without objection does not, under any circumstance, entitle a right of ownership. The duty of the tribunal was to determine the authenticity of the said exhibits before concluding ownership of the disputed land. Concerning the cited section 45 of the Land Disputes Courts Act (supra), the learned counsel replied that the noted errors and irregularities occasioned miscarriage of justice to the appellant, and thus, the judgment should be reversed. 20 Replying the averment that the appellant filed the suit after a lapse of 28 years without explanation; Mr. Gideon said that such an issue was determined at the preliminary stage and was overruled on 09/10/2020 before the Trial Tribunal. The learned counsel for the appellant maintained that the appellant was the only person mandated to institute the case before the Trial Tribunal. The appellant's counsel reiterated that the appellant's evidence was strong, consistent, and direct. Based on the case of Hemedi Said (supra) and section 110 of the Evidence Act (supra), Mr. Gideon believed that the appellant proved his case according to the required standard of law. He insisted that this appeal should be allowed with costs. Having summarized submissions of the learned counsels of both parties and after careful consideration of the trial tribunal’s records, the issue for determination is whether the raised grounds of appeal have merit. I have keenly examined the grounds of appeal and discovered that all grounds except the 4th ground concern evaluation of evidence. Thus, I will discuss the 1st, 2nd, 3rd and 5th grounds of appeal jointly while guided by the well-established principle of law that the first appeal is in the form of a re-hearing. As a first appellate court, I have a duty to re-evaluate the 21 entire evidence on record, subject it to critical scrutiny, and if warranted, arrive at my own conclusion of fact. In the case of Afrique Engineering & Construction Company Limited vs The Registered Trustees of the Diocese of Central Tanganyika (Civil Appeal No. 474 of 2021) [2024] TZCA 591 (17 July 2024) Tanzlii at page 11 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…” In the present matter, the appellant's counsel faulted the trial tribunal for improperly evaluating the evidence. He centered his arguments on five issues: First, that the respondent's evidence was weak and contradictory since SU1 said that Mzee Juma Seif was alone during the disposition of the suit property while SU2 said that Abu Olotu was accompanied by Mzee Juma Seif. Moreover, he argued that their evidence was hearsay. Second, that there was no effective transfer. Third, Juma Seif was not the actual owner authorized to dispose of the land and should have had Power of Attorney. Fourth, he believed that the construction of permanent 22 structures was not proof of ownership. Fifth, Abu Olotu was not the author of Exhibit D1, and that the exhibit does not suggest if it was prepared by the said Abu Olotu. On the other hand, Mr. Moses, for the respondent, disputed the above arguments. He claimed that the respondent was in actual possession of the disputed property for 28 years and that Abu Olotu knew that the land was sold. He asserted that no evidence from the appellant addressed issues which were raised at the trial. It is trite principle of law that in civil cases, the burden of proof lies with the party who asserts, and the standard of proof is on balance of probabilities. In the case of African Banking Corporation T. Ltd v. T- Better Holdings Co. Ltd (Civil Appeal No. 207 of 2017) [2024] TZCA 165 (6 March 2024) Tanzlii, the Court of Appeal observed that: “…On the law regarding burden of proof which characterises the discussion in this ground. The law under section 110(1) of the Evidence Act is that he who alleges must prove his allegation to succeed in a suit. It is equally the law that, unlike in criminal trials, the burden of proof in civil cases is not static…. It is also trite that, a party who 23 has the burden of proof must discharge his burden on balance of probabilities regardless of the weakness in the case of his opponent…” Emphasis added The position in the instant matter is that, while the appellant stressed that the disputed property belonged to his late father Abu Olotu, the respondent contended that he purchased the said property from the father of the appellant. Considering that the appellant was the one who alleged that the suit land is the property of his late father, he was required to prove two things: First, that the disputed property belonged to his father. Second, that the respondent is a trespasser. The first aspect, whether the disputed property belonged to the father of the appellant, was sufficiently discharged. It was not disputed that the disputed property was formerly owned by the father of the appellant, the late Abu Olotu. In resolving the second aspect whether the respondent was a trespasser; it is the settled opinion of this court that this aspect was not proved on balance of probabilities. Weighing the evidence of the appellant and that of the respondent, it is observed that the respondent sufficiently outweighed evidence of the appellant regarding trespass. During the trial, 24 the respondent tendered Exhibit D1, written by Abu Olotu, concerning his intention to sell his landed property. Despite the fact that the said statement (Exhibit D1) which was written by Abu Olotu does not contain the name of the respondent as a purchaser, the same was supplemented by Exhibit D2, which was the actual sale agreement and Addendum to Sale agreement which was admitted as exhibit D3. Mr. Gideon's queries about the person who signed these exhibits will be resolved shortly. The next issue for determination is Mr. Gideon’s contention that the sale agreement was not signed by the vendor. With due respect, this contention is without merit, as it is clearly indicated in Exhibit D2 that Juma Seif signed the agreement on behalf of his son Abu Olotu. However, Exhibit D3, an addendum to the agreement, was signed by Abu Olotu, the vendor. Further, SU3 Mathew Mushi, who witnessed the agreement, explained at page 63 of the trial Tribunal proceedings that the vendor told them that he would authorize Juma Seif to sign on his behalf. It is unfortunate that the learned counsel for the appellant did not state how the original document of ownership (exhibit D4) came into the hands of the respondent. I am aware that transfer of right of occupancy is governed by the law, to be concise, it should be written. Based on the 25 reason that the sale agreement and its addendum is written as required by the law, the remaining aspect was transfer of the title deed to the respondent. Thus, the dictates of section 61 (1) and 64(1) (a), (b) and (2) of the Land Act, Cap 113 R.E 2022 were complied with except that the transfer was not finalised. The sections prescribe as follows: Section 61(1) of the Land Act, Cap 113 R.E 2022 provides that: “61. -(1) No right of occupancy, lease or mortgage shall be capable of being disposed of or dealt with except in accordance with this Act, and any attempt to dispose of any right of occupancy, lease or mortgage otherwise than in accordance with this Act, shall be ineffectual to create, extinguish, transfer, vary or affect any right or interest in land, or in the right of occupancy, lease or mortgage.” Emphasis supplied Section 64(1) (a), (b) and (2) of the Land Act, (supra) provides that: “64. -(1) A contract for the disposition of a right of occupancy or any derivative right in it or a mortgage is enforceable in a proceeding only if- 26 (a) the contract is in writing or there is a written memorandum of its terms; (b) the contract or the written memorandum is signed by the party against whom the contract ought to be enforced. (2) A contract for a disposition referred to in subsection (1) may be made using a prescribed form.” Emphasis added As already stated, in the instant case, the provisions of the law which I have quoted herein above, were complied with. In the case of Registered Trustees of Holy Spirit Sisters Tanzania v. January Kamili Shayo and 136 Others, Civil Appeal No. 193 of 2016 [2018] TZCA 32 (21 August 2018) at page 19 last paragraph, it was held that: “There is, in this regard, a long line of authority to the effect that an oral and unapproved agreement for the disposition of land held under a Right of Occupancy such as the one relied upon by the respondents, is inoperative and of no effect.” Emphasis added 27 See also my decision on similar issue in the case of Gipson S. Kisanga (As administrator of the estate of the late Gerson Kisanga v. Atrisiana Karisia (Land Appeal No. 8104 of 2024) [2024] TZHC 7614 (26 August 2024) at page 13 – 15 (Tanzlii). The allegations that evidence of SU1 and SU2 was hearsay and that there were contradictions in their evidence are unfounded. Respectfully to Mr. Gideon, these witnesses categorically stated that they were not present when the parties entered into the agreement to sell the disputed land. Thus, even if their evidence contradicts in one way or another, the contradiction does not touch the root of the matter and does not negate the fact that the respondent is not the trespasser. Regarding the allegations that the respondent's evidence was weak because the respondent failed to transfer the disputed property since 2003; SU2 explained at page 59 of the typed proceedings that failure to transfer the disputed property was due to absence of an appointed administrator for the estate of the late Abuu Olotu. Moreover, it is the opinion of this court that from 1992, when the sale of the disputed property occurred, to 2003, when the appellant's father died, about 11 years elapsed. If there was any trespass, I am sure the 28 appellant's father as the actual owner was the right person to sue during those 11 years. He could not withstand looking at the respondent trespassing on the disputed land. Regardless of whether the weaknesses in the respondent's case pointed out by Mr. Gideon were actual or not; as explained in the case of African Banking Corporation T. Ltd (supra), the appellant had the burden of proof and ought to discharge the burden on balance of probabilities. Having said so, I find the 1st, 2nd, 3rd, and 5th grounds of appeal baseless. The last issue for determination is in respect to the 4th ground of appeal, where Mr. Gideon faulted the trial Chairman for declaring the respondent owner of the suit land in absence of a counterclaim. I have gone through the pleadings as well as the respondent's evidence. With due respect to Mr. Gideon, at paragraph 8(a) of the Written Statement of Defence, the respondent prayed for the Tribunal to declare that the respondent is the lawful owner of the disputed land. Also, SU2 at page 59 of the proceedings prayed for the Tribunal to issue an order transferring the disputed property from the name of the appellant’s father to the respondent's name. Thus, since there were such prayers to that 29 effect, the Tribunal's decision to declare the respondent as lawful owner of the suit land was justifiable. In the event, as the first appellate court, my review of the evidence on record leads to the conclusion that this appeal is devoid of merit. Hence, I hereby dismiss it in its entirety with costs. It is so ordered. Dated and delivered at Moshi this 30th day of August 2024, in the presence of the appellant in person, Ms Josephine J. Mushi the estate Manager of the respondent and Mr. Moses Basila, learned counsel for the respondent. Right of further Appeal explained. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 30/08/2024 30 31