LAND APPEAL NO 4312 SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND APPEAL CASE NO. 4312 OF 2024 (Originating from the decisions of the District Land and Housing Tribunal for Temeke at Temeke in Land Application No. 45 of2021) EVAN N. MULOKOZI................................................... 1STAPPELLANT SALUM YUSSUF KABENZA..........................................2NDAPPELLANT VERSUS MOHAMED ALLY MOHAMED..................................... RESPONDENT M '/X JUDGMENT Date of last Order: 30/09/2024 Date ofJudgment: 31/10/2024 LALTAIKA J. The 1st Appellant herein EVAN N. MULOKOZI is dissatisfied with the decision of the District Land and Housing Tribunal for Temeke at Temeke (the DLHT) in Land Application No. 4312 OF 2024. He has appealed to this Court by way of a Memorandum of Appeal containing the following grounds: Page 1 of 17 1. That the trial Chairperson erred both in law and fact for holding the Respondent herein as the lawful owner of the disputed land. 2. That the trial Chairperson erred both in law and fact by holding that the Appellant herein is a trespasser. 3. That the trial Chairperson erred both in law and fact for disregarding the evidence submitted by the Appellant. 4. That the trial Chairperson erred in law and fact in holding that the Respondent herein statements and Exhibit P-1 to be concrete proof of ownership without assessing them. 5. That the trial Chairperson erred both in law and fact for failing to evaluate the evidence on record. 6. That the trial Chairperson erred both in law and fact for delivering decision without providing reasons to substantiate the delivered decision. When the appeal was called on for mention on the 28th day of August 2024, the Appellants appeared through Ms. Shamim Kikoti, learned Advocate. The Respondent, on the other hand, appeared through Ms. Marther Mohamed, learned Advocate. Parties opted for hearing by way of written submissions. With a nod of approval from this Court the following schedule was ordered: Appellant's written submission in chief to filed on or before 11/09/2024, Respondent's reply to be filed on or before 24/9/2024, Rejoinder if any 30/9/2024, mention for necessary orders to schedule for the date of judgement: 30/09/2024 at 11:00 AM Page 2 of 17 I take this opportunity to register my commendations to the learned Advocates for their commitment and spotless compliance to the scheduled order. The next part of this judgment is a summary of rival submissions, my analysis and the verdict. Ms. Kikoti, Counsel for the Appellant, submitted that the First Appellant had purchased a piece of land in November 2005 from Salum Yussuf Kabenza, and that the Respondent in the case had acted as a witness for the seller. Following this purchase, the First Appellant immediately built a small guard house and, in 2006, began constructing a two-bedroom house. By 2009, he had completed building a boundary wall. On the other hand, the Respondent had informed the court that he had purchased the land from Hawa Nasoro and that, in 1995, he contracted leprosy, resulting in prolonged hospitalization from that time onward. Counsel continued, stating that the First Appellant resided and worked in Dubai, United Arab Emirates, with his family. Upon returning to Tanzania in 2010, the First Appellant found that the land which had belonged to the Respondent had been sold to third parties, including Wille Ludovick Mushi (PW3), and that houses had been built in such a way that they blocked access to the Appellant's property. Nevertheless, the First Appellant Page 3 of 17 continued to enjoy the property until 2021, when he received a call from the local government chairman informing him of a case filed against the Appellants at the Temeke District Court concerning the land he had bought in 2005. Ms. Kikoti then prayed to withdraw the sixth ground of appeal. As an alternative, she requested to submit on the first to fifth grounds of appeal by analysing each one in turn. Regarding the first and second grounds of appeal, Counsel argued that the First Appellant was the lawful owner of the land in dispute and had been using it peacefully from 2005 to 2021. She contended that the trial tribunal had erred by holding that the Respondent was the lawful owner, disregarding the evidence tendered by DW1, DW5, DW6, and PW3. Counsel emphasized that these witnesses had knowledge that the disputed land belonged to the First Appellant. She pointed out that during the visit to the locus in quo by the trial tribunal, DW5, DW6, and PW3 had provided testimony supporting the Appellant's case. PW3 had testified that he had purchased his property from the Respondent and had found the Appellant already in possession of the Page 4 of 17 disputed land, which was fully fenced. PW3's sale agreement with the Respondent had also demarcated the southern boundary, indicating that the First Appellant's land was adjacent. Counsel asserted that the evidence from DW5, DW6, and the First Appellant was sufficient to prove that the disputed land belonged to the First Appellant. Ms. Kikoti argued that the evidence provided by the First Appellant and his witnesses was unequivocal, while the Respondent's testimony left doubts. She noted that although the Respondent claimed to have been hospitalized from 1995 to 2018 due to leprosy, he had not provided any supporting evidence to the tribunal. Furthermore, PW3 and DW5 had stated that when they purchased their properties, they had found the Appellant already in possession of the disputed land. Counsel referred to the principle in civil cases that "he who alleges must prove," as stipulated under sections 110 and 111 of the Evidence Act [Cap 6, R.E. 2019]. She emphasized that this principle was upheld in Paulina Samson Ndawavya v. Theresia Thomas Madaha, Civil Appeal No. 53 of 2017 (unreported), where the apex Court stated that in civil disputes, the standard of proof is on the balance of probabilities, meaning the court will accept the more credible evidence. She further argued that the Page 5 of 17 Respondent's evidence was contradictory, as he had not specified how long he had been hospitalized or why he had not checked on his land. When the Respondent sold the property to PW3, Ms. Kikoti asserted, the Appellant was already in possession of the disputed land, and the Respondent had failed to take any measures regarding the land at that time. Therefore, Counsel argued, the burden of proof fell on the Respondent, which he failed to discharge. To buttress her argument Counsel cited (the persuasive English case of) Miller v. Minister of Pensions [1937] 2 All E.R. 340, specifically Lord Denning's statement that if, at the end of a case, the evidence is evenly balanced, the tribunal must decide accordingly. Turning to the issue of whether the Appellant was a trespasser on the disputed land, Counsel argued that the tribunal had erred in holding that the Appellant was a trespasser. The Appellant had a sale agreement, which the Respondent had witnessed by affixing his thumbprint. During the trial, the Respondent did not deny having witnessed the sale agreement. Therefore, Counsel argued that the Respondent was aware that the disputed property belonged to the Appellant, and the land that the Respondent once owned had already been sold to third parties, most of whom had been compensated by TANESCO. Page 6 of 17 Ms. Kikoti consolidated the third and fifth grounds of appeal, submitting that the tribunal had erred in disregarding the evidence provided by the Appellant and in failing to properly evaluate the evidence on record. She asserted that the testimonies of DW1, DW5, DW6, and PW3 overwhelmingly supported the Appellant's claim to ownership of the disputed land. Counsel compared Exhibit P-1 and Exhibit D-l, noting that the former, presented by the Respondent, was purportedly from 1995, while the latter, presented by the Appellant, was from 2005. She argued that Exhibit P-1 did not appear to be a genuine document, while Exhibit D-l, which the Respondent had witnessed, was valid. Although the Respondent had not denied witnessing the sale agreement, Ms. Kikoti reasoned, the Tribunal failed to evaluate the uncertainty surrounding the Respondent's evidence. Based on the evidence submitted at the trial, Counsel concluded that the Respondent had owned land in Vijibweni near the disputed land but had sold all of his property to third parties. She cited Stanslaus Rugabe Kasusura and Another v. Phares Kabuye [1982] TLR 338, in which the apex Court held that it is the duty of the trial court to evaluate the evidence of each witness and make findings on the contested facts. Page 7 of 17 Regarding the fourth ground of appeal, Counsel argued that Exhibit P-1 was not a genuine document. During cross-examination, PW2, who had testified as a witness for the Respondent, Counsel narrated, was not listed as such on the Respondent's sale agreement. In conclusion, Ms. Kikoti prayed that the appeal be allowed, and that the court declare the Appellant the rightful owner of the disputed land. Ms. Mohamed, Counsel for the Respondent, in her objection to the grounds of appeal, submitted that the written submissions by the Appellants in support of the appeal were without merit and thus should be dismissed in their entirety with costs. Ms. Mohamed further contended that, regarding the first and second grounds of appeal, the Respondent, as the Applicant in the trial tribunal, had successfully proven their case on the balance of probabilities. She explained that the Respondent had submitted a sale agreement as evidence, which detailed that the Respondent purchased the disputed land from one MwanaHawa Nassoro, with the Second Appellant acting as a witness. She pointed out that the Second Appellant, in his written statement of defense prior to his death, had confirmed that he was not the vendor and Page 8 of 17 that MwanaHawa Nassoro was the seller, with the First Respondent merely witnessing the transaction in his capacity as a leader at the time. Ms. Mohamed argued that the First Appellant failed to demonstrate ownership of the disputed land, as his claim was based on a purported sale agreement with the Second Appellant. However, Ms. Mohamed noted, the Second Appellant had denied ever selling the disputed property to the First Appellant and did not recognize the sale agreement in question when summoned to testify before the tribunal. Moreover, Ms. Mohamed refuted the Appellant's argument that the Respondent had witnessed the sale agreement. She contended that this assertion was inaccurate since the Second Appellant, prior to his death, did not acknowledge the agreement as a vendor. Additionally, she clarified that the Respondent's name did not appear on the sale agreement, noting that the document bore the name "Mohammed Alli Moh'd," rather than "Mohamed Ally Mohamed," which is the Respondent's actual name. Regarding the third and fifth grounds of appeal, Ms. Mohamed maintained that the trial tribunal had properly evaluated the evidence from both parties and found that the Respondent's evidence was more convincing. She argued Page 9 of 17 that, although both the First Appellant and the Respondent possessed sale agreements, the Appellant's document was invalid, as he failed to establish the seller's identity. Ms. Mohamed emphasized that the Second Appellant's written defense denied any involvement in the alleged sale, rendering the witness's endorsement of the transaction irrelevant. Consequently, she argued that the First Appellant had likely forged the sale agreement, as evidenced by his failure to charge the Second Respondent with false pretences following the latter's denial of any sale. Ms. Mohamed also pointed out that the wife of the Second Appellant, serving as administratrix of his estate, provided no documentation during her testimony before the trial tribunal to substantiate her husband's ownership or sale of the disputed property to the First Appellant. She added that the tribunal's judgment clearly indicated the lack of evidence supporting the sale between the First Appellant and MwanaHawa Nassoro, and it reiterated the legal principle that the party with the stronger evidence prevails. In conclusion, Ms. Mohamed prayed that the court dismiss the appeal with costs. Page 10 of 17 In her rejoinder submission, Ms. Kikoti stated that it was undisputed the Second Appellant had filed a written statement of defense on March 24, 2021, prior to his passing. Upon receiving the summons, she contended, the Second Appellant was unaware of the specific property at issue in the dispute, as he had never sold the Respondent's property to the First Appellant. Instead, what he sold was his own land, with the Respondent ■ - ■' . ■ acting as a witness to the sale agreement since he was the neighbouring landowner. Ms. Kikoti further explained that the First Appellant had purchased this property in 2005, as indicated by Exhibit D-l, and built a small house on it in 2006. By 2009, he had fenced the entire property without any interference, thereby establishing himself as the lawful owner. She added that it was not disputed the Respondent had other land nearby, some of which was sold to various individuals, including DW5 and PW3. PW3, identified as Wille Ludovick Mushi, stated in his testimony that upon purchasing the land from the Respondent, he discovered that the First Appellant's property was marked as the southern boundary in the sale agreement. Page 11 of 17 Addressing the claim that the Second Appellant saw the sale agreement at the tribunal, Ms. Kikoti asserted this was untrue. She strongly argued that when the First Appellant submitted his statement of evidence on June 3, 2021, he and the Second Appellant had never met at the tribunal, nor had the Second Appellant been served with the First Appellant's written statement of defense, as suggested by the Respondent's counsel. According to Ms. Kikoti, the Second Appellant was unaware of any property belonging to the Respondent that was allegedly trespassed upon or sold to the First Appellant. She reiterated that the Second Appellant had not sold the Respondent's property and had always understood the Respondent's land boundaries, including the property sold to DW5, which was adjacent to the land sold to the First Appellant. Ms. Kikoti asserted that in the sale agreement between the First and Second Appellants, the Respondent acted as a witness due to his position as a neighbouring landowner. In response to the submission by the Respondent's counsel, who noted a slight variation in the Respondent's name in different documents, Ms. Kikoti acknowledged the discrepancy. She stated that while the name in the sale agreement appeared as "MOHAMMED ALLI MOH'D/' this could be a spelling error and did not signify a different person. Furthermore, she Page 12 of 17 pointed out that the Respondent did not provide testimony at trial concerning the exact spelling of his name. Ms. Kikoti emphasized that the Second Appellant did not recognize the disputed land as the property he had sold to the First Appellant, given that the sale occurred in 2005, and the land had remained undisputed until the summons in 2021. She also refuted the claim that the First Appellant had forged the sale agreement, asserting it was genuine. In her view, the Appellant could not be considered a trespasser, as the land alleged to be trespassed upon was property that the Respondent had sold to DW5, who confirmed this sale in his testimony. In conclusion, Ms. Kikoti prayed that the court allow the appeal and declare the Appellant the rightful owner of the disputed land. I have dispassionately considered the grounds of appeal, rival submissions, and the record of the proceedings. The primary issue at hand is the rightful ownership of the disputed land, contested by the First Appellant, Mr. Evan N. Mulokozi, and the Respondent. I will address the grounds of appeal in clusters, beginning with the claim of lawful ownership and the assertion of trespass. Page 13 of 17 On grounds one and two: ownership and trespass, the First Appellant contends that he lawfully acquired the disputed land in 2005, subsequently took possession, and remained unchallenged until 2021, while the Respondent claims ownership dating back to an alleged purchase in 1995. Ms. Kikoti argues that substantial evidence, including the Appellant's own testimony and that of supporting witnesses DW5 and DW6, corroborates the Appellant's uninterrupted possession and development of the land. In contrast, Ms. Mohamed, Counsel for the Respondent, submitted that the Respondent presented a valid sale agreement proving prior ownership, and the trial tribunal rightfully ruled in the Respondent's favour on a balance of probabilities. In matters of ownership, the legal principle places the burden on the party asserting ownership to prove it on a balance of probabilities. This principle was articulated in Paulina Samson Ndawavya v. Theresia Thomas Madaha (Supra). Here, the Appellant provided evidence of possession, construction, and boundary demarcation as early as 2005, and testimonies from witnesses corroborating his presence on the land. Page 14 of 17 Notably, PW3, who purchased adjoining land from the Respondent, indicated in his testimony that the Appellant's land had been fully fenced by the time of his own purchase, suggesting that the Appellant's occupation of the disputed land was known and established. On grounds three and five which are centred on evaluation of evidence, the Appellant criticizes the trial tribunal's evaluation of the evidence, asserting that it failed to appropriately weigh the evidence provided by his witnesses. Ms. Kikoti argues that the tribunal overlooked critical details, such as DW5 and PW3's testimonies, which affirmed the Appellant's presence and construction activities on the land. It is an established duty of the court to evaluate each piece of evidence independently and assess its reliability, as affirmed in Stanslaus Rugabe Kasusura and Another v. Phares Kabuye [1982] TLR 338. This duty was not discharged by the trial tribunal, which neglected to weigh the coherence of the Respondent's evidence against the Appellant's evidence and supporting testimonies. Furthermore, the tribunal did not sufficiently examine the Respondent's extended absence from the land, which, if unexplained, could weaken his claim of ownership. Page 15 of 17 On ground four which centres on authenticity of exhibit Pl, the Appellant questions the authenticity of Exhibit P-1, the Respondent's sale agreement from 1995. In Miller v. Minister of Pensions, (Supra) Lord Denning stated that if, at the end of a case, the evidence is evenly balanced, the tribunal must rule accordingly. In the present case, the Respondent's evidence includes his sale agreement and a claim of ownership dating back to 1995, yet he failed to substantiate prolonged absence from the land, which raises questions about his effective exercise of ownership rights. Additionally, the Appellant's active possession and development of the land since 2005 remain uncontested by the Respondent until recent years. In view of the unchallenged physical possession and development of the disputed land by the First Appellant since 2005, and the Respondent's inability to substantiate his long-standing absence or effectively disprove the Appellant's occupation, I am satisfied that the Appellant has demonstrated ownership on a balance of probabilities. Accordingly, this appeal is hereby allowed. The decision of the District Land and Housing Tribunal for Temeke is set aside. The First Appellant, Mr. Evan N. Mulokozi, is declared the rightful owner of the disputed land. Each party shall bear their own costs. Page 16 of 17 It is so ordered. E.I. LALTAIKA JUDGE 31/10/2024 Court Ruling delivered this 31st day of October 2024 in the presence of Ms. Martha Mohamed Counsel for the Respondent and holding brief for Ms. Shamin Kikoti, C nt. E.I. LALTAIKA JUDGE 1/10/2024 Page 17 of 17